EXHIBIT 4-E
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CREDIT AGREEMENT
dated as of March 6, 1995
among
FRED MEYER, INC.,
VARIOUS FINANCIAL INSTITUTIONS
and
THE BANK OF NOVA SCOTIA,
as Agent
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TABLE OF CONTENTS
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SECTION 1 DEFINITIONS AND INTERPRETATION. . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
1.2 Computations; Changes in GAAP . . . . . . . . . . . 11
1.3 Cross-References; Section Caption . . . . . . . . . 11
SECTION 2 COMMITMENTS OF THE LENDERS; TYPES OF LOANS;
BORROWING AND CONVERSION PROCEDURES.. . . . . . . . 12
2.1 Syndicated Loans. . . . . . . . . . . . . . . . . . 12
2.1.1 Commitments. . . . . . . . . . . . . . . . 12
2.1.2 Types of Syndicated Loans. . . . . . . . . 12
2.1.3 Borrowing Procedures . . . . . . . . . . . 12
2.1.4 Continuation and Conversion Procedures . . 13
2.1.5 Warranty upon Conversion or Continuation . 13
2.1.6 Conditions . . . . . . . . . . . . . . . . 13
2.1.7 Pro Rata Treatment . . . . . . . . . . . . 13
2.1.8 Commitments Several. . . . . . . . . . . . 13
2.2 Competitive Bid Loans . . . . . . . . . . . . . . . 14
2.2.1 The Company May Request Offers . . . . . . 14
2.2.2 Types of Competitive Bid Loans . . . . . . 14
2.2.3 Bid Procedure. . . . . . . . . . . . . . . 14
2.2.4 Borrowing Procedure. . . . . . . . . . . . 18
2.2.5 Repayment of Competitive Bid Loans . . . . 18
2.2.6 No Effect on Commitment. . . . . . . . . . 18
2.3 Extension of Termination Date . . . . . . . . . . . 18
SECTION 3 NOTES EVIDENCING LOANS. . . . . . . . . . . . . . . 19
3.1 Notes . . . . . . . . . . . . . . . . . . . . . . . 19
3.1.1 Syndicated Loan Notes. . . . . . . . . . . 19
3.1.2 Competitive Bid Loan Notes . . . . . . . . 19
3.2 Recordkeeping . . . . . . . . . . . . . . . . . . . 19
SECTION 4 INTEREST. . . . . . . . . . . . . . . . . . . . . . 19
4.1 Interest Rates. . . . . . . . . . . . . . . . . . . 19
4.1.1 Syndicated Loans . . . . . . . . . . . . . 19
4.1.2 Competitive Bid Loans. . . . . . . . . . . 20
4.2 Interest Payment Dates. . . . . . . . . . . . . . . 20
4.3 Setting and Notice of Eurodollar Rates and
Eurodollar Competitive Bid Rates. . . . . . . . . . 20
4.4 Computation of Interest . . . . . . . . . . . . . . 21
SECTION 5 FEES. . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 Facility Fee. . . . . . . . . . . . . . . . . . . . 21
5.2 Agent's Fee . . . . . . . . . . . . . . . . . . . . 21
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS . . . . . . . . . . . . . . . . . . . . 21
6.1 Reduction or Termination of the Commitments . . . . 21
6.2 Prepayments . . . . . . . . . . . . . . . . . . . . 22
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES . . 22
7.1 Making of Payments. . . . . . . . . . . . . . . . . 22
7.2 Application of Certain Payments . . . . . . . . . . 22
7.3 Due Date Extension. . . . . . . . . . . . . . . . . 22
7.4 Setoff. . . . . . . . . . . . . . . . . . . . . . . 23
7.5 Proration of Payments on Syndicated Loans . . . . . 23
7.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
EURODOLLAR LOANS. . . . . . . . . . . . . . . . . . 25
8.1 Increased Costs . . . . . . . . . . . . . . . . . . 25
8.2 Basis for Determining Interest Rate Inadequate
or Unfair . . . . . . . . . . . . . . . . . . . . . 26
8.3 Changes in Law Rendering Eurodollar Loans
Unlawful. . . . . . . . . . . . . . . . . . . . . . 26
8.4 Funding Losses. . . . . . . . . . . . . . . . . . . 27
8.5 Right of Lenders to Fund through Other Offices. . . 27
8.6 Discretion of Lenders as to Manner of Funding . . . 27
8.7 Mitigation of Circumstances; Replacement of
Affected Lender or Objecting Lender . . . . . . . . 28
8.8 Conclusiveness of Statements; Survival of
Provisions. . . . . . . . . . . . . . . . . . . . . 28
SECTION 9 WARRANTIES. . . . . . . . . . . . . . . . . . . . . 29
9.1 Organization, etc . . . . . . . . . . . . . . . . . 29
9.2 Authorization; No Conflict. . . . . . . . . . . . . 29
9.3 Validity and Binding Nature . . . . . . . . . . . . 29
9.4 Financial Information . . . . . . . . . . . . . . . 29
9.5 No Material Adverse Change. . . . . . . . . . . . . 29
9.6 Litigation and Contingent Liabilities . . . . . . . 30
9.7 Ownership of Properties; Liens. . . . . . . . . . . 30
9.8 Subsidiaries. . . . . . . . . . . . . . . . . . . . 30
9.9 Pension and Welfare Plans . . . . . . . . . . . . . 30
9.10 Regulated Industry. . . . . . . . . . . . . . . . . 30
9.11 Regulations G, U and X. . . . . . . . . . . . . . . 30
9.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . 30
9.13 Environmental and Safety and Health Matters . . . . 31
9.14 Compliance with Law . . . . . . . . . . . . . . . . 31
9.15 Information . . . . . . . . . . . . . . . . . . . . 31
SECTION 10 COVENANTS. . . . . . . . . . . . . . . . . . . . . 31
10.1 Reports, Certificates and Other Information . . . . 31
10.1.1 Audit Report . . . . . . . . . . . . . . . 31
10.1.2 Interim Reports. . . . . . . . . . . . . . 32
10.1.3 Compliance Certificate . . . . . . . . . . 32
10.1.4 Reports to SEC . . . . . . . . . . . . . . 32
10.1.5 Notice of Default, Litigation and ERISA
Matters. . . . . . . . . . . . . . . . . . 32
10.1.6 Subsidiaries . . . . . . . . . . . . . . . 32
10.1.7 Other Information. . . . . . . . . . . . . 33
10.2 Books, Records and Inspections. . . . . . . . . . . 33
10.3 Insurance . . . . . . . . . . . . . . . . . . . . . 33
10.4 Compliance with Law; Payment of Taxes and
Liabilities . . . . . . . . . . . . . . . . . . . . 33
10.5 Maintenance of Existence, etc . . . . . . . . . . . 33
10.6 Financial Ratios and Restrictions . . . . . . . . . 33
10.6.1 Minimum Consolidated Tangible Net Worth. . 33
10.6.2 Long-Term Liabilities to Net Worth Ratio . 34
10.6.3 Fixed Charge Coverage Ratio. . . . . . . . 34
10.7 Limitation on Liens . . . . . . . . . . . . . . . . 34
10.8 Debt. . . . . . . . . . . . . . . . . . . . . . . . 35
10.9 Guaranties, Loans and Advances. . . . . . . . . . . 36
10.10 Mergers, Consolidations, Sales. . . . . . . . . . . 36
10.11 Company's and Subsidiaries' Stock . . . . . . . . . 37
10.12 Unconditional Purchase Obligations. . . . . . . . . 37
10.13 Employee Benefit Plans. . . . . . . . . . . . . . . 37
10.14 Purchase or Redemption of Company's Securities;
Dividend Restriction. . . . . . . . . . . . . . . . 37
10.15 Use of Proceeds . . . . . . . . . . . . . . . . . . 38
SECTION 11 CONDITIONS OF LENDING . . . . . . . . . . . . . . . 38
11.1 Initial Loan. . . . . . . . . . . . . . . . . . . . 38
11.1.1 Notes. . . . . . . . . . . . . . . . . . . 38
11.1.2 Resolutions. . . . . . . . . . . . . . . . 38
11.1.3 Consents, etc. . . . . . . . . . . . . . . 38
11.1.4 Incumbency and Signature Certificates. . . 39
11.1.5 Opinion of Counsel for the Company . . . . 39
11.1.6 Other. . . . . . . . . . . . . . . . . . . 39
11.2 All Loans . . . . . . . . . . . . . . . . . . . . . 39
11.2.1 No Default . . . . . . . . . . . . . . . . 39
11.2.2 Confirmatory Certificate . . . . . . . . . 39
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT. . . . . . . . . 39
12.1 Events of Default . . . . . . . . . . . . . . . . . 39
12.1.1 Non-Payment of the Loans, etc. . . . . . . 39
12.1.2 Non-Payment of Other Debt. . . . . . . . . 39
12.1.3 Other Material Obligations . . . . . . . . 40
12.1.4 Bankruptcy, Insolvency, etc. . . . . . . . 40
12.1.5 Non-Compliance with Provisions of This
Agreement. . . . . . . . . . . . . . . . . 40
12.1.6 Warranties . . . . . . . . . . . . . . . . 40
12.1.7 Pension Plans. . . . . . . . . . . . . . . 40
12.1.8 Withdrawal Liability Under Multiemployer
Plans. . . . . . . . . . . . . . . . . . . 41
12.1.9 Judgments and Attachments. . . . . . . . . 41
12.1.10 Change in Control . . . . . . . . . . . . . 41
12.2 Effect of Event of Default. . . . . . . . . . . . . 41
SECTION 13 THE AGENT . . . . . . . . . . . . . . . . . . . . . 41
13.1 Authorization . . . . . . . . . . . . . . . . . . . 41
13.2 Indemnification . . . . . . . . . . . . . . . . . . 41
13.3 Exculpation . . . . . . . . . . . . . . . . . . . . 42
13.4 Credit Investigation. . . . . . . . . . . . . . . . 42
13.5 Agent and Affiliates. . . . . . . . . . . . . . . . 42
13.6 Action on Instructions of the Required Lenders. . . 42
13.7 Funding Reliance. . . . . . . . . . . . . . . . . . 43
13.8 Resignation . . . . . . . . . . . . . . . . . . . . 43
SECTION 14 GENERAL . . . . . . . . . . . . . . . . . . . . . . 44
14.1 Waiver; Amendments. . . . . . . . . . . . . . . . . 44
14.2 Confirmations . . . . . . . . . . . . . . . . . . . 44
14.3 Notices . . . . . . . . . . . . . . . . . . . . . . 44
14.4 Subsidiary References . . . . . . . . . . . . . . . 45
14.5 Regulation U. . . . . . . . . . . . . . . . . . . . 45
14.6 Costs, Expenses and Taxes . . . . . . . . . . . . . 45
14.7 Indemnification by the Company. . . . . . . . . . . 45
14.8 Successors and Assigns. . . . . . . . . . . . . . . 46
14.9 Assignments; Participations . . . . . . . . . . . . 46
14.9.1 Assignments. . . . . . . . . . . . . . . . 46
14.9.2 Participations . . . . . . . . . . . . . . 47
14.10 Governing Law . . . . . . . . . . . . . . . . . . . 48
14.11 Counterparts. . . . . . . . . . . . . . . . . . . . 48
14.12 Forum Selection and Consent to Jurisdiction . . . . 48
14.13 Maximum Interest Rate . . . . . . . . . . . . . . . 49
14.14 Waiver of Jury Trial. . . . . . . . . . . . . . . . 49
14.15 Oregon Legal Notice . . . . . . . . . . . . . . . . 50
SCHEDULE I Commitments and Percentages
SCHEDULE II Schedule of Subsidiaries
EXHIBIT A Form of Competitive Bid Quote Request (Section 2.2.3)
EXHIBIT B Form of Invitation for Competitive
Bid Quotes (Section 2.2.3)
EXHIBIT C Form of Competitive Bid Quote (Section 2.2.3)
EXHIBIT D Form of Competitive Bid Loan
Acknowledgment (Section 2.2.3)
EXHIBIT E Form of Competitive Bid Loan
Confirmation (Section 2.2.3)
EXHIBIT F Form of Extension Request (Section 2.3)
EXHIBIT G Form of Syndicated Loan Note (Section 3.1)
EXHIBIT H Form of Competitive Bid Loan Note (Section 3.1)
EXHIBIT I Form of Opinion of Counsel for
the Company (Section 11.1.5)
EXHIBIT J Form of Assignment Agreement (Section 14.9.1)
CREDIT AGREEMENT
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This CREDIT AGREEMENT, dated as of March 6, 1995 (as amended
or otherwise modified from time to time, this "Agreement"), is
entered into among FRED MEYER, INC., a Delaware corporation (the
"Company"), the undersigned financial institutions (collectively
the "Lenders" and individually each a "Lender") and THE BANK OF
NOVA SCOTIA, by and through its Portland, Oregon Branch (in its
individual capacity, together with its successors, "Scotiabank"),
as agent for the Lenders.
In consideration of the mutual agreements herein contained,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1 DEFINITIONS AND INTERPRETATION.
1.1 Definitions. When used herein the following terms
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shall have the following meanings (such definitions to be
applicable to both the singular and plural forms of such terms):
Affected Lender means any Lender that has given notice to
the Company (which has not been rescinded) of (i) any obligation
by the Company to pay any amount pursuant to Section 7.6 or 8.1
or (ii) the occurrence of any circumstance of the nature
described in Section 8.2 or 8.3.
Affected Loan - see Section 8.3.
Agent means Scotiabank in its capacity as agent for the
Lenders hereunder and any successor thereto in such capacity.
Agreement - see the Preamble.
Alternate Base Rate means at any time the greater of (a) the
Federal Funds Rate plus 0.50% and (b) the Base Rate.
Alternate Base Rate Loan means any Loan which bears interest
at or by reference to the Alternate Base Rate.
Assets Purchase Agreement means the Assets Purchase
Agreement dated as of September 25, 1981, among the Company, FMI
Acquisition Corporation and Fred Meyer Real Estate Properties,
Ltd., as it may be amended from time to time.
Assignee - see Section 14.9.1.
Assignment Agreement - see Section 14.9.1.
Base Rate means at any time the rate per annum then most
recently announced by Scotiabank as its Base Rate at Portland,
Oregon.
Business Day means any day (other than a Saturday or Sunday)
on which banks are open for commercial banking business in New
York, New York and Portland, Oregon and, in the case of a
Business Day which relates to a Eurodollar Loan or a Eurodollar
Competitive Bid Loan, on which dealings are carried on in the
London interbank market.
Capital Lease means any lease of property (whether real,
personal or mixed) which would, in accordance with GAAP, be
required to be classified and accounted for on the books of the
lessee as a capital lease.
Change in Control means the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the SEC under the Securities
Exchange Act of 1934, as amended) of outstanding shares of voting
stock of the Company representing in excess of 50% of voting
control of Company, which Person or Persons have beneficial
ownership of less than 5% of the outstanding shares of voting
stock of the Company as of the date of this Agreement.
Commitment as to any Lender means the commitment of such
Lender to make Syndicated Loans hereunder, as adjusted from time
to time pursuant to Section 2.2.2(b), Section 6.1 or Section
14.9. The amount of the initial Commitment of each Lender is set
forth on Schedule I.
Commitment Amount - see Section 2.1.1.
Company - see the Preamble.
Competitive Bid Borrowing - see Section 2.2.3.
Competitive Bid Loan - see Section 2.2.
Competitive Bid Loan Acknowledgment - see Section 2.2.3.
Competitive Bid Loan Confirmation - see Section 2.2.3.
Competitive Bid Loan Limit - see Section 2.2.3.
Competitive Bid Loan Note - see Section 3.1.2.
Competitive Bid Quote - see Section 2.2.3
Competitive Bid Quote Request - see Section 2.2.3.
Consolidated Long-Term Liabilities means, as of the date of
any determination thereof, consolidated Debt for Borrowed Money
of the Company and its Subsidiaries, secured or unsecured, (i)
payable more than one year from such date, plus (ii) Capital
Leases to the extent maturing in a year or less, plus (iii) all
other Debt for Borrowed Money not classified as current
liabilities in the Company's financial reporting.
Consolidated Net Tangible Net Worth means Consolidated
Tangible Net Worth less (unless otherwise taken into account in
determining consolidated net worth) the amounts of payments
(whether in cash or issuance of Debt) made to employees in
redemption of stock under Management Stock Agreements.
Consolidated Tangible Net Worth means the consolidated net
worth of the Company and its Subsidiaries less (unless otherwise
deducted in determining consolidated net worth) the aggregate
amount of any intangible assets of the Company and its
Subsidiaries, including, without limitation, deferred financing
and organizational costs (net of amortization), goodwill,
franchises, licenses, patents, trademarks, trade names,
copyrights, service marks and brand names, but not subtracting
from consolidated net worth of the Company and its Subsidiaries
the unamortized amount of such intangible assets arising out of
the Assets Purchase Agreement and the purchase of Grand Central,
Inc. in 1984, as shown on Company's audited consolidated
financial statement as at January 29, 1994 referred to in
subsection 4.3 (such amount with respect to future calculations
thereof to be determined in the same manner as the unamortized
amount ($5,523,000) shown on such financial statement dated
January 29, 1994).
Consolidated Total Assets means the total consolidated
assets of the Company and its Subsidiaries as shown on the most
recent consolidated balance sheet of the Company and its
Subsidiaries referred to in Section 9.4 or delivered to the
Lenders pursuant to Section 10.1.
Debt of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, whether or not
evidenced by bonds, debentures, notes or similar instruments, (b)
all obligations of such Person as lessee under Capital Leases
which have been recorded as liabilities on a balance sheet of
such Person, (c) all obligations of such Person to pay the
deferred purchase price of property or services (other than
current accounts payable in the ordinary course of business), (d)
all indebtedness secured by a Lien on the property of such
Person, whether or not such indebtedness shall have been assumed
by such Person (it being understood that if such Person has not
assumed or otherwise become personally liable for any such
indebtedness, the amount of the Debt of such Person in connection
therewith shall be limited to the lesser of the face amount of
such indebtedness or the fair market value of all property of
such Person securing such indebtedness), (e) all obligations,
contingent or otherwise, with respect to the face amount of all
letters of credit (whether or not drawn) and banker's acceptances
issued for the account of such Person, (f) all obligations of
such Person in respect of Hedging Arrangements, (g) all
Suretyship Liabilities of such Person and (h) all Debt (as
defined above) of any partnership in which such Person is a
general partner. The amount of the Debt of any Person in respect
of Hedging Arrangements shall be deemed to be the unrealized net
loss position of such Person thereunder (determined for each
counterparty individually, but netted for all Hedging
Arrangements maintained with such counterparty).
Debt for Borrowed Money of any Person means all Debt of such
Person described in (without duplication) clauses (a), (b), (c),
(d) and, to the extent constituting a Suretyship Liability in
respect of Debt for Borrowed Money of another Person, (g) of the
definition of Debt.
Dollar and the sign "$" mean lawful money of the United
States of America.
Effective Date - see Section 11.1.
Environmental Laws means the Resource Conservation and
Recovery Act of 1987, the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called "Superfund" or
"Superlien" law, the Toxic Substances Control Act, and any other
federal, state or local statute, law, ordinance, code, rule,
regulation order or decree regulating or relating to, or imposing
liability or standards of conduct concerning, any hazardous
materials or other hazardous or toxic substance, as now or at any
time hereafter in effect.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also
refer to any successor sections.
ERISA Affiliate means any corporation, trade or business
that is, along with the Company, a member of a controlled group
of trades or businesses, as described in section 414(b) and
414(c), respectively, of the Internal Revenue Code of 1986, as
amended, or section 4001 of ERISA.
Eurocurrency Reserve Percentage means, with respect to any
Eurodollar Loan or Eurodollar Competitive Bid Loan for any
Interest Period, a percentage (expressed as a decimal) equal to
the daily average during such Interest Period of the percentage
in effect on each day of such Interest Period, as prescribed by
the Board of Governors of the Federal Reserve System (or any
successor), for determining the aggregate maximum reserve
requirements applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other then applicable regulation of such
Board of Governors which prescribes reserve requirements
applicable to "Eurocurrency Liabilities" as presently defined in
Regulation D.
Eurodollar Auction means a solicitation of Competitive Bid
Quotes setting forth Eurodollar Margins based on the Eurodollar
Competitive Bid Rate (Reserve Adjusted) pursuant to Section 2.2.
Eurodollar Competitive Bid Loans means Competitive Bid Loans
the interest rate on which are determined on the basis of
Eurodollar Competitive Bid Rates (Reserve Adjusted) pursuant to a
Eurodollar Auction.
Eurodollar Competitive Bid Rate means with respect to any
Eurodollar Competitive Bid Loan for any Interest Period, the
average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Eurodollar Office
of each Reference Lender four Business Days prior to the
beginning of such Interest Period by major banks in the interbank
eurodollar market as at or about 8:00 a.m., Portland time, for
delivery on the first day of such Interest Period, for the number
of days comprised therein and in an amount equal or comparable to
the amount of the Competitive Bid Borrowing for the Interest
Period.
Eurodollar Competitive Bid Rate (Reserve Adjusted) - means,
with respect to any Eurodollar Competitive Bid Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Eurodollar Competitive Bid Rate = Eurodollar Competitive Bid Rate
(Reserve Adjusted) ---------------------------------
1-Eurocurrency Reserve Percentage
Eurodollar Loan means any Loan which bears interest at a
rate determined by reference to the Eurodollar Rate (Reserve
Adjusted).
Eurodollar Margin - see Section 2.2.3(c).
Eurodollar Office means with respect to any Lender the
office or offices of such Lender which shall be making or
maintaining the Eurodollar Loans of such Lender hereunder or such
other office or offices through which such Lender determines its
Eurodollar Rate or Eurodollar Competitive Bid Rate. A Eurodollar
Office of any Lender may be, at the option of such Lender, either
a domestic or foreign office.
Eurodollar Rate means with respect to any Eurodollar Loan
for any Interest Period, the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the rates per annum
at which Dollar deposits in immediately available funds are
offered to the Eurodollar Office of each Reference Lender two
Business Days prior to the beginning of such Interest Period by
major banks in the interbank eurodollar market as at or about
8:00 a.m., Portland time, for delivery on the first day of such
Interest Period, for the number of days comprised therein and in
an amount equal or comparable to the amount of the Eurodollar
Loan of such Reference Lender for such Interest Period.
Eurodollar Rate (Reserve Adjusted) - means, with respect to
any Eurodollar Loan for any Interest Period, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) ------------------
1-Eurocurrency
Reserve Percentage
Event of Default means any of the events described in
Section 12.1.
Excluded Taxes - see Section 7.6
Exemption Agreement - see Section 7.6
Exemption Representation - see Section 7.6
Extension Request - see Section 2.3.
Federal Funds Rate means, for any day, the rate set forth in
the daily statistical release designated as the Composite 3:30
p.m. Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor publication, the "Composite 3:30
p.m. Quotations") for such day under the caption "Federal Funds
Effective Rate". If such rate is not published in the Composite
3:30 p.m. Quotations for any Business Day, the rate for such day
will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m., New York
City time, on such day by each of three leading brokers of
Federal funds transactions in New York City, selected by the
Agent. The rate for any day which is not a Business Day shall be
the rate for the immediately preceding Business Day.
Fiscal Quarter means any fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Company and its
Subsidiaries, which period shall be the period of approximately
12 months ending on the Saturday closest to January 31 in each
year.
Fixed Charge Coverage Ratio means, as of the last day of any
Fiscal Quarter, the ratio of (a) the sum of the Company's
consolidated net earnings before interest expense, taxes,
depreciation and amortization for the period of four Fiscal
Quarters ending on such day plus the Company's consolidated
rental expense on operating leases for such period to (b) the sum
of (i) the Company's consolidated interest expense for such
period plus (ii) the Company's consolidated rental expense on
operating leases for such period plus (iii) the amount classified
as the current portion of all long-term debt (excluding, if
applicable, the Loans) and lease obligations of the Company and
its Subsidiaries on a consolidated balance sheet prepared on such
day.
GAAP means those generally accepted accounting principles as
in effect from time to time in the United States of America.
Group - see Section 2.1.2.
Hedging Arrangement means any interest rate swap, cap or
collar agreement, currency swap agreement, commodity swap
agreement or other arrangement designed to hedge interest rate
and/or currency risk or changes in commodity prices.
Indemnified Liabilities - see Section 14.7
Interest Period means
(a) with respect to any Eurodollar Loan, the
period commencing on and including the date such Loan is
made or is converted from an Alternate Base Rate Loan, or on
the last day of the immediately preceding Interest Period
for such Loan, and ending on, but excluding, the numerically
corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company shall specify in
the related notice of borrowing, conversion or continuation
pursuant to Section 2.1.3 or 2.1.4; provided, however, that
(i) if an Interest Period would otherwise
end on a day which is not a Business Day, such
Interest Period shall end on the immediately
succeeding Business Day (unless such succeeding
Business Day would be the first Business Day of a
calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day);
(ii) each Interest Period that commences on
any day for which there is no numerically
corresponding day in the appropriate subsequent
calendar month shall end on the last Business Day of
the appropriate subsequent calendar month; and
(iii) the Company may not select any
Interest Period which extends beyond the scheduled
Termination Date;
(b) with respect to any Eurodollar Competitive
Bid Loan, the period commencing on and including the date
such Eurodollar Competitive Bid Loan is made and ending on,
but excluding, the numerically corresponding day in the
first, second, or third calendar month thereafter, as the
Company may select as provided in Section 2.2; provided,
however, that
(i) if an Interest Period would otherwise
end on a day which is not a Business Day, such
Interest Period shall end on the immediately
succeeding Business Day (unless such succeeding
Business Day would be the first Business Day of a
calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day);
(ii) each Interest Period that commences on
any day for which there is no numerically
corresponding day in the appropriate subsequent
calendar month shall end on the last Business Day of
the appropriate subsequent calendar month; and
(iii) the Company may not select any
Interest Period which extends beyond the scheduled
Termination Date; and
(c) with respect to any Set Rate Loan, the
period commencing on the date such Set Rate Loan is
made and ending on any Business Day at least seven and
no more than 90 days thereafter, as the Company may
select as provided in Section 2.2; provided, however,
that the Company may not select any Interest Period
which extends beyond the scheduled Termination Date.
Invitation for Competitive Bid Quote - see Section 2.2.3.
Lender - see the Preamble.
Lender Party - see Section 14.7
Lien means, when used with respect to any Person, any
interest of any other Person in any real or personal property,
asset or other right owned or being purchased or acquired by such
Person which secures payment or performance of any obligation and
shall include any mortgage, lien, encumbrance, charge or other
security interest of any kind, whether arising by contract, as a
matter of law, by judicial process or otherwise.
Loans when used without a modifying adjective, means,
collectively, Syndicated Loans and Competitive Bid Loans.
Management Stock Agreement means any agreement between the
Company and key employees which provides for the sale of stock to
employees with repurchase rights of, and obligations in, the
Company.
Margin Stock means any "margin stock" as defined in
Regulation U of the Board of Governors of the Federal Reserve
System.
Material Adverse Effect means a material adverse effect on
the ability of the Company to timely and fully perform any of its
payment or other material obligations under this Agreement or any
Note.
Material Subsidiary means any Subsidiary which either (a)
has assets which constitute 5% or more of the consolidated assets
of the Company and its Subsidiaries or (b) has revenues during
its most recently-ended fiscal year which constitute more than 5%
of the consolidated revenues of the Company and its Subsidiaries
during the most recently-ended Fiscal Year.
Multiemployer Plan means a "multiemployer plan" as defined
in section 4001(a)(3) of ERISA which is maintained for employees
of the Company or any ERISA Affiliate of the Company or more.
New York means, unless otherwise stated, New York City, New
York, United States of America.
Notes when used without a modifying adjective, means,
collectively, Syndicated Loan Notes and Competitive Bid Loan
Notes.
Objecting Lender - see Section 2.3.
Occupational Safety and Health Law means the Occupational
Safety and Health Act of 1970 and any other federal, state or
local statute, law, ordinance, code, rule, regulation, order or
decree regulating or relating to, or imposing liability or
standards of conduct concerning, employee health and/or safety,
as now or at any time hereafter in effect.
Participant - see Section 14.9.2.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined
in section 3(2) of ERISA, which is subject to title IV of ERISA
(other than a Multiemployer Plan), and to which the Company or
any ERISA Affiliate may have any liability, including any
liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
Percentage means as to any Lender the percentage which the
amount of such Lender's Commitment is of the aggregate amount of
Commitments (or, if the Commitments have terminated, which the
principal amount of such Lender's outstanding Loans is of the
principal amount of all outstanding Loans). The Percentages of
the Lenders as of the Effective Date are set forth on Schedule I.
Person means any natural person, corporation, partnership,
trust, association, governmental authority or unit, or any other
entity, whether acting in an individual, fiduciary or other
capacity.
Portland means Portland, Oregon, United States of America.
Quotation Date - see Section 2.2.3(a)(v)
Recipient Taxes - see Section 7.6
Reference Lender means each of First Interstate Bank of
Oregon, N.A. and Scotiabank.
Release means a "release", as such term is defined in
CERCLA.
Required Lenders means Lenders having an aggregate
Percentage of 66-2/3% or more.
Scotiabank - see the Preamble.
SEC means the Securities and Exchange Commission.
Set Rate - see Section 2.2.3(c)(iv).
Set Rate Auction means a solicitation of a Competitive Bid
Quote setting forth Set Rates pursuant to Section 2.2.
Set Rate Loans means Competitive Bid Loans the interest
rates on which are determined on the basis of Set Rates pursuant
to a Set Rate Auction.
Subsidiary means, with respect to any Person, any
corporation of which such Person and/or its other Subsidiaries
own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election
of directors. Unless the context otherwise requires, each
reference to Subsidiaries herein shall be a reference to
Subsidiaries of the Company.
Suretyship Liability means any agreement, undertaking or
other contractual arrangement by which any Person guarantees,
endorses or otherwise becomes or is contingently liable upon (by
direct or indirect agreement, contingent or otherwise, to provide
funds for payment, to supply funds to or otherwise to invest in a
debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability (including accounts
payable) of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under
any Suretyship Liability shall (subject to any limitation set
forth therein) be deemed to be the principal amount of the
indebtedness, obligation or other liability guaranteed thereby.
Syndicated Loan - see Section 2.1.1.
Syndicated Loan Note - see Section 3.1.1.
Taxes - see Section 7.6
Termination Date means 364 days after the Effective Date as
such date is extended from time to time pursuant to Section 2.3
or such other date on which the Commitments shall terminate
pursuant to Section 6.1 or 12.2.
Type of Competitive Bid Loan or Borrowing - see Section
2.2.2. The types of Competitive Bid Loans or borrowings under
this Agreement are as follows: Eurodollar Competitive Bid Loans
or borrowings and Set Rate Loans or borrowings.
Type of Syndicated Loan or Borrowing - see Section 2.1.2.
The types of Syndicated Loans or borrowings under this Agreement
are as follows: Alternate Base Rate Loans or borrowings and
Eurodollar Loans or borrowings.
Unmatured Event of Default means any event which if it
continues uncured will, with lapse of time or notice or lapse of
time and notice, constitute an Event of Default.
Welfare Plan means a "welfare plan", as such term is defined
in section 3(i) of ERISA.
1.2 Computations; Changes in GAAP. Where the character
-----------------------------
or amount of any asset or liability or any item of income or
expense is required to be determined, or any consolidation or
other accounting computation is required to be made, for purposes
of this Agreement, such determination or calculation shall, to
the extent applicable and except as otherwise specified in this
Agreement, be made in accordance with GAAP. If any change in
accounting principles from those used in the preparation of the
audited financial statements referred to in Section 9.4 hereafter
occasioned by the promulgation of any rule, regulation,
pronouncement or opinion by or required by the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with
similar functions) results in a change in the method of
calculation of financial covenants, standards or terms found in
Section 1 or 10, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria
for evaluating the Company's financial condition shall be the
same after such change as if such change had not been made.
1.3 Cross-References; Section Captions. A Section, an
----------------------------------
Exhibit or a Schedule is, unless otherwise stated, a reference to
a section hereof or an exhibit or schedule hereto, as the case
may be. Section captions are for convenience only and shall not
affect the interpretation of this Agreement.
SECTION 2 COMMITMENTS OF THE LENDERS; TYPES OF LOANS;
BORROWING AND CONVERSION PROCEDURES.
2.1 Syndicated Loans.
----------------
2.1.1 Commitments. Subject to the terms and
-----------
conditions of this Agreement, each of the Lenders, severally and
for itself alone, agrees to make loans to the Company on a
revolving basis (collectively the "Syndicated Loans" and
individually each a "Syndicated Loan") from time to time before
the Termination Date in such Lender's Percentage of such
aggregate amounts as the Company may from time to time request
from all Lenders; provided, however, that (i) the aggregate
principal amount of all Syndicated Loans which any Lender shall
be committed to have outstanding hereunder shall not at any time
exceed the amount of such Lender's Commitment; and (ii) the
aggregate principal amount of all Syndicated Loans which all
Lenders shall be committed to have outstanding hereunder (the
"Commitment Amount") shall not at any time exceed $100,000,000
(as such amount is reduced from time to time pursuant to Section
6.1 and Section 2.2.2(b)).
2.1.2 Types of Syndicated Loans. Each Syndicated
-------------------------
Loan shall be either an Alternate Base Rate Loan or a Eurodollar
Loan (each a "type" of Syndicated Loan), as the Company shall
specify in the related notice of borrowing or conversion pursuant
to Section 2.1.3 or 2.1.4. Eurodollar Loans having the same
Interest Period are sometimes called a "Group" or collectively
"Groups". Alternate Base Rate Loans and Eurodollar Loans may be
outstanding at the same time, provided that (i) not more than
eight different Groups of Eurodollar Loans shall be outstanding
at any one time and (ii) the aggregate principal amount of each
Group of Eurodollar Loans shall at all times (including after
giving effect to any conversion or continuation of any Syndicated
Loans) be at least $5,000,000 and an integral multiple of
$1,000,000.
2.1.3 Borrowing Procedures. The Company shall give
--------------------
written or telephonic notice to the Agent of each proposed
borrowing not later than (a) in the case of an Alternate Base
Rate borrowing, 9:00 a.m., Portland time, on the proposed date of
such borrowing, and (b) in the case of a Eurodollar borrowing,
9:00 a.m., Portland time, at least three Business Days prior to
the proposed date of such borrowing. Each such notice shall be
effective upon receipt by the Agent and shall specify the date,
amount and type of borrowing and, in the case of a Eurodollar
borrowing, the initial Interest Period therefor. Promptly upon
receipt of such notice, the Agent shall advise each Lender
thereof. (The Company shall deliver written confirmation of each
telephonic notice or send such confirmation by facsimile
transmission to the Agent as soon as practicable on the same day
such notice is given.) Not later than 12:00 noon, Portland time,
on the date of a proposed borrowing, each Lender shall provide
the Agent at the principal office of the Agent in Portland with
immediately available funds covering such Lender's Percentage of
such borrowing and, subject to the satisfaction of the conditions
precedent set forth in Section 11 with respect to such borrowing,
the Agent shall pay over such funds to the Company on the
requested borrowing date. Each borrowing shall be on a Business
Day. Each borrowing shall be in an aggregate amount of at least
$1,000,000, in the case of Alternate Base Rate Loans, or
$5,000,000, in the case of Eurodollar Loans, and shall be in an
integral multiple of $1,000,000.
2.1.4 Continuation and Conversion Procedures.
--------------------------------------
Subject to the provisions of the last sentence of Section 2.1.2,
the Company may convert all or any part of any outstanding
Syndicated Loan into a Syndicated Loan of a different type, or
continue all or any part of any outstanding Eurodollar Loan for a
succeeding Interest Period beginning on the last day of the
current Interest Period for such Syndicated Loan, by giving
written or telephonic notice to the Agent not later than (a) in
the case of conversion into an Alternate Base Rate Loan, 9:00
a.m., Portland time, on the proposed date of such conversion, and
(b) in the case of a conversion into or continuation of a
Eurodollar Loan, 9:00 a.m., Portland time, at least three
Business Days prior to the proposed date of such conversion or
continuation. Each such notice shall be effective upon receipt
by the Agent and shall specify the date and amount of such
conversion or continuation, the Loan to be so converted or
continued and, in the case of a conversion into or continuation
of a Eurodollar Loan, the initial or subsequent Interest Period
therefor, as applicable. Promptly upon receipt of such notice,
the Agent shall advise each Lender thereof. (The Company shall
deliver written confirmation of each telephonic notice or send
such confirmation by facsimile transmission to the Agent as soon
as practicable on the same day such notice is given.) Subject to
Section 2.1.6, such Loan shall be so converted or continued on
the requested date of conversion or continuation. Each
conversion and continuation shall be on a Business Day. If the
Company fails to give timely notice of continuation of a
Eurodollar Loan, such Loan shall automatically convert to an
Alternate Base Rate Loan on the last day of the Interest Period
therefor.
2.1.5 Warranty upon Conversion or Continuation.
----------------------------------------
Each notice of conversion or continuation pursuant to Section
2.1.4 shall automatically constitute a warranty by the Company to
the Agent and each Lender to the effect that, on the date of such
requested conversion or continuation, no Event of Default or
Unmatured Event of Default shall exist.
2.1.6 Conditions. Notwithstanding any other
----------
provision of this Agreement, no Lender shall be obligated to make
any Syndicated Loan, or to convert into or permit the
continuation at the end of the applicable Interest Period of any
Eurodollar Loan, if an Event of Default or Unmatured Event of
Default exists.
2.1.7 Pro Rata Treatment. All borrowings,
------------------
conversions and repayments of Syndicated Loans shall be effected
so that after giving effect thereto each Lender will have a pro
rata share (according to its Percentage) of all types of
Syndicated Loans.
2.1.8 Commitments Several. The failure of any
-------------------
Lender to make a requested Syndicated Loan on any date shall not
relieve any other Lender of its obligation (if any) to make a
Syndicated Loan on such date, but no Lender shall be responsible
for the failure of any other Lender to make any Syndicated Loan
to be made by such other Lender.
2.2 Competitive Bid Loans.
---------------------
2.2.1 The Company May Request Offers. In addition
------------------------------
to borrowings of Syndicated Loans provided for in Section 2.1, at
any time prior to the Termination Date the Company may, as set
forth in this Section 2.2, request the Lenders to make offers to
make Competitive Bid Loans to the Company in Dollars. The
Lenders may, but shall have no obligation to, make such offers
and the Company may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.2.
2.2.2 Types of Competitive Bid Loans. Competitive
------------------------------
Bid Loans may be Eurodollar Competitive Bid Loans or Set Rate
Loans (each a "type" of Competitive Bid Loan), provided that:
(a) there may not be Interest Periods for
both Syndicated Loans and Competitive Bid Loans outstanding
at the same time which have expiration dates occurring on
more than 12 different dates; and
(b) the aggregate principal amount of all
Competitive Bid Loans, together with the aggregate principal
amount of all Syndicated Loans, at any one time outstanding
shall not exceed the Commitment Amount at such time.
2.2.3 Bid Procedure.
-------------
(a) When the Company wishes to request
offers to make Competitive Bid Loans, it shall give the
Agent notice (a "Competitive Bid Quote Request") so as to be
received no later than 9:00 a.m. Portland time on (x) the
fourth Business Day prior to the date of borrowing proposed
therein, in the case of a Eurodollar Auction or (y) the
Business Day immediately preceding the date of borrowing
proposed therein, in the case of a Set Rate Auction (or, in
any such case, such other time and date as the Company and
the Agent may agree). Upon receipt of a Competitive Bid
Quote Request, the Agent shall promptly notify the Lenders
by an invitation for bid in substantially the form of
Exhibit B (an "Invitation for Competitive Bid Quotes"). The
Company may request offers to make Competitive Bid Loans for
up to three different Interest Periods in a single notice;
provided that the request for each separate Interest Period
shall be deemed to be a separate Competitive Bid Quote
Request for a separate borrowing (a "Competitive Bid
Borrowing"). Each Competitive Bid Quote Request shall be
substantially in the form of Exhibit A and shall specify as
to each Competitive Bid Borrowing:
(i) the proposed date of such
borrowing, which shall be a Business Day;
(ii) the amount of such Competitive Bid
Borrowing, which shall be at least $5,000,000 (or a
larger multiple of $1,000,000) but shall not cause
the limits specified in Section 2.2.2 hereof to be
violated;
(iii) the duration of the Interest
Period applicable thereto;
(iv) whether the Competitive Bid Quotes
requested for a particular Interest Period are
seeking quotes for Eurodollar Competitive Bid Loans
or Set Rate Loans; and
(v) if the Competitive Bid Quotes
requested are seeking quotes for Set Rate Loans, the
date on which the Competitive Bid Quotes are to be
submitted if the date is before the proposed date of
borrowing (the date on which such Competitive Bid
Quotes are to be submitted is called the "Quotation
Date").
Except as otherwise provided in this Section 2.2.3(a), not
more than three Competitive Bid Quote Requests shall be
given within any six consecutive Business Days (or such
other number of days as the Company and the Agent may
agree).
(b) Each Lender may submit one or more
Competitive Bid Quotes ("Competitive Bid Quotes" and
individually, a "Competitive Bid Quote"), each containing an
offer to make a Competitive Bid Loan in response to any
Competitive Bid Quote Request; provided that, if the
Company's request under Section 2.2.3(a) specified more than
one Interest Period, such Lender may make a single
submission containing one or more Competitive Bid Quotes for
each such Interest Period. Each Competitive Bid Quote must
be submitted to the Agent not later than (x) 2:00 p.m.
Portland time on the fourth Business Day prior to the
proposed date of borrowing, in the case of a Eurodollar
Auction or (y) 10:00 a.m. Portland time on the Quotation
Date, in the case of a Set Rate Auction (or, in any such
case, such other time and date as the Company and the Agent
may agree); provided that any Competitive Bid Quote may be
submitted by the Lender acting as Agent (or its Eurodollar
Office) only if the Lender acting as Agent (or such
Eurodollar Office) notifies the Company of the terms of the
offer contained therein no later than (x) 1:00 p.m. Portland
time on the fourth Business Day prior to the proposed date
of borrowing, in the case of a Eurodollar Auction or (y)
9:45 a.m. Portland time on the Quotation Date, in the case
of a Set Rate Auction.
(c) Each Competitive Bid Quote shall be
substantially in the form of Exhibit C and shall specify:
(i) the proposed date of borrowing and
the Interest Period therefor;
(ii) the principal amount of the
Competitive Bid Loan for which each such offer is
being made, which principal amount shall be at least
$5,000,000 (or a larger multiple of $1,000,00);
provided that the aggregate principal amount of all
Competitive Bid Loans for which a Lender submits
Competitive Bid Quotes (x) may be greater or less
than the Commitment of such Lender but (y) may not
exceed the principal amount of the Competitive Bid
Borrowing for a particular Interest Period for which
offers were requested;
(iii) in the case of a Eurodollar
Auction, the margin above or below the applicable
Eurodollar Competitive Bid Rate (Reserve Adjusted)
(the "Eurodollar Margin") offered for each such
Competitive Bid Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest
1/10,000th of 1%) to be added to or subtracted from
the applicable Eurodollar Competitive Bid Rate
(Reserve Adjusted);
(iv) in the case of a Set Rate Auction,
the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) offered
for each such Competitive Bid Loan (the "Set Rate");
and
(v) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the Company, no
Competitive Bid Quote shall contain qualifying, conditional
or similar language or propose terms other than or in
addition to those set forth in the applicable Competitive
Bid Quote Request and, in particular, no Competitive Bid
Quote may be conditioned upon acceptance by the Company of
all (or some specified minimum) of the principal amount of
the Competitive Bid Loan for which such Competitive Bid
Quote is being made, provided that the submission by any
Lender containing more than one Competitive Bid Quote may be
conditioned on the Company not accepting offers contained in
such submission that would result in such Lender making
Competitive Bid Loans pursuant thereto in excess of a
specified aggregate amount set forth in the Competitive Bid
Quote (the "Competitive Bid Loan Limit").
(d) The Agent shall (x) in the case of a Set
Rate Auction, as promptly as practicable after the
Competitive Bid Quote is submitted (but in any event not
later than 10:15 a.m. Portland time on the Quotation Date)
or (y) in the case of a Eurodollar Auction, by 4:00 p.m.
Portland time on the day a Competitive Bid Quote is
submitted, notify the Company of the terms (i) of any
Competitive Bid Quote submitted by a Lender that is in
accordance with Sections 2.2.3(b) and 2.2.3(c), and (ii) of
any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Agent
unless such subsequent Competitive Bid Quote is submitted
solely to correct a manifest error in such former Competitive
Bid Quote. The Agent's notice to the Company shall specify
(A) the aggregate principal amount of the Competitive Bid
Borrowing for which offers have been received and (B) the
respective principal amounts and Eurodollar Margins or Set
Rates, as the case may be, so offered by each Lender
(identifying the Lender that made each Competitive Bid
Quote).
(e) Not later than (x) 4:00 p.m. Portland
time on the third Business Day prior to the proposed date of
borrowing, in the case of a Eurodollar Auction, or (y) 11:00
a.m. Portland time on the Quotation Date, in the case of a
Set Rate Auction (or, in any such case, such other time and
date as the Company and the Agent may agree), the Company
shall notify the Agent of its acceptance or nonacceptance of
the offers so notified to it pursuant to Section 2.2.3(d)
(which notice shall be substantially in the form of Exhibit
D (a "Competitive Bid Loan Acknowledgment") and shall
specify the aggregate principal amount of offers from each
Lender for each Interest Period that are accepted, it being
understood that the failure of the Company to give such
notice by such time shall constitute nonacceptance) and the
Agent shall promptly notify each affected Lender. The
notice from the Agent shall be in substantially the form of
Exhibit E (a "Competitive Bid Loan Confirmation") and shall
also specify the aggregate principal amount of offers for
each Interest Period that were accepted and the lowest and
highest Eurodollar Margins and Set Rates that were accepted
for each Interest Period. The Company may accept any
Competitive Bid Quote in whole or in part (provided that any
Competitive Bid Quote accepted in part shall be at least
$5,000,000 or a larger multiple of $1,000,000, unless
otherwise required in order to pro rate Competitive Bid
Quotations as set forth below in this Section 2.2.3(e));
provided that
(i) the aggregate principal amount of
each Competitive Bid Borrowing may not exceed the
applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) the aggregate principal amount of
each Competitive Bid Borrowing shall be at least
$5,000,000 (or a larger multiple of $1,000,000) but
shall not cause the limits specified in Section 2.2.2
to be violated;
(iii) acceptance of offers for each
Interest Period may, subject to Section 2.2.3(e)(iv)
below, be made only in ascending order of Eurodollar
Margins or Set Rates, as the case may be, in each
case beginning with the lowest rate so offered;
(iv) the aggregate principal amount of
each Competitive Bid Borrowing from any Lender may
not exceed any applicable Competitive Bid Loan Limit
of such Lender.
If offers are made by two or more Lenders with the same
Eurodollar Margins or Set Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which
such offers are accepted shall be allocated by the Agent
among such Lenders as nearly as possible in proportion to the
aggregate principal amount of such offers. Determinations by
the Company of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error.
2.2.4 Borrowing Procedure. Any Lender whose offer
-------------------
to make any Competitive Bid Loan has been accepted in accordance
with the terms and conditions of this Section 2.2 shall, not
later than 12:00 noon Portland time on the date specified for the
making of such Loan, make the amount of such Loan available to
the Agent in immediately available funds, for account of the
Company. The amount so received by the Agent shall, subject to
the terms and conditions of this Agreement, be made available to
the Company on such date by depositing the same, in immediately
available funds, in an account of the Company designated by the
Company.
2.2.5 Repayment of Competitive Bid Loans. The
----------------------------------
Company shall pay to the Agent for the account of each Lender
that makes any Competitive Bid Loan the principal amount of such
Competitive Bid Loan, and such Competitive Bid Loan shall mature,
on the last day of the Interest Period for such Competitive Bid
Loan.
2.2.6 No Effect on Commitment. The amount of
-----------------------
Competitive Bid Loans made by any Lender shall not reduce such
Lender's obligations under Section 2.1.
2.3 Extension of Termination Date. During the period
-----------------------------
from and including the day which is 90 days before the
Termination Date to and including the day which is 60 days before
the Termination Date (other than a Termination Date pursuant to
Section 6.1 or 12.2), the Company may, at its option, deliver to
the Agent (which shall promptly notify each Lender) a signed copy
of an extension request (an "Extension Request") in the form of
Exhibit F, requesting an extension of the Termination Date for a
period of 364 days. On or before the day which is 30 days after
the Company has delivered an Extension Request, each Lender shall
have the right, in its sole and absolute discretion, to deliver a
written notice to the Agent consenting to or rejecting the
requested extension. If a Lender has not given such notice to
the Agent during such 30-day period, such Lender shall be deemed
not to have consented to such extension. If all Lenders consent
to an Extension Request, the Termination Date shall be extended
for an additional 364 days effective on the day following the
Termination Date. If any Lender (an "Objecting Lender") rejects,
or is deemed not to have consented to, an Extension Request
during the 30-day notice period, the Termination Date shall not
be so extended; provided that if Lenders with an aggregate
Percentage of less than 25% are Objecting Lenders, then the
Termination Date shall be so extended if, on or before the
Termination Date, the Company (a) replaces each Objecting Lender
pursuant to Section 8.7 with Lenders (which may be existing or
new Lenders) which consent to the applicable Extension Request or
(b) to the extent all Objecting Lenders have not been so
replaced, by notice to the Agent and each Objecting Lender,
terminates the Commitments of all Objecting Lenders (and
concurrently pays to the Agent for the account of each Objecting
Lender all amounts owed to such Objecting Lender hereunder) and
reduces the aggregate amount of all of the Commitments by a
corresponding amount.
SECTION 3 NOTES EVIDENCING LOANS.
3.1 Notes. The Loans of each Lender shall be evidenced by
-----
promissory notes as follows:
3.1.1 Syndicated Loan Notes. The Syndicated Loans
---------------------
of each Lender shall be evidenced by a promissory note (as
amended, supplemented, replaced or otherwise modified from time
to time, individually each a "Syndicated Loan Note" and
collectively for all Lenders the "Syndicated Loan Notes")
substantially in the form set forth in Exhibit G, with
appropriate insertions, dated the Effective Date (or such other
date as shall be satisfactory to the Agent), payable to the order
of such Lender in the principal amount of the Commitment of such
Lender (or, if less, in the aggregate unpaid principal amount of
such Lender's Loans).
3.1.2 Competitive Bid Loan Notes. The Competitive
--------------------------
Bid Loans of each Lender shall be evidenced by a promissory note
(as amended, supplemented, replaced or otherwise modified from
time to time, individually each a "Competitive Bid Loan Note" and
collectively for all Lenders the "Competitive Bid Loan Notes")
substantially in the form set forth in Exhibit H, with
appropriate insertions, dated the Effective Date (or such other
date as shall be satisfactory to the Agent), payable to the order
of such Lender.
3.2 Recordkeeping. Each Lender shall record in its
-------------
records, or at its option on the schedules attached to its
Syndicated Loan Note and Competitive Bid Loan Note, the date and
amount of each Syndicated Loan and Competitive Bid Loan, as the
case may be, made by such Lender, each repayment or conversion
(if applicable) thereof and, in the case of each Eurodollar Loan
and Competitive Bid Loan, the dates on which each Interest Period
for such Loan shall begin and end. The aggregate unpaid
principal amount so recorded shall be rebuttable presumptive
evidence of the principal amount owing and unpaid on such Notes.
The failure to so record any such amount or any error in so
recording any such amount shall not, however, limit or otherwise
affect the obligations of the Company hereunder or under any
Syndicated Loan Note or Competitive Bid Loan Note to repay the
principal amount of the Syndicated Loans and Competitive Bid
Loans evidenced by such Notes together with all interest accruing
thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest
--------------
on the unpaid principal amount of each Loan as follows:
4.1.1 Syndicated Loans. The Company promises to
----------------
pay interest on the unpaid principal amount of each Syndicated
Loan for the period commencing on and including the date of such
Syndicated Loan to but excluding the date such Syndicated Loan is
paid in full, as follows:
(a) at all times while such Syndicated Loan is an
Alternate Base Rate Loan, at a rate per annum equal to the
Alternate Base Rate from time to time in effect; and
(b) at all times while such Syndicated Loan is a
Eurodollar Loan, at a rate per annum equal to the Eurodollar
Rate (Reserve Adjusted) applicable to each Interest Period
for such Loan plus 0.305%.
4.1.2 Competitive Bid Loans. The Company promises
---------------------
to pay interest on the unpaid principal amount of each
Competitive Bid Loan for the period commencing on and including
the date of such Competitive Bid Loan to but excluding the date
such Competitive Bid Loan is paid in full, as follows:
(a) if such Competitive Bid Loan is a
Eurodollar Competitive Bid Loan, the Eurodollar Competitive
Bid Rate (Reserve Adjusted) for such Loan for the Interest
Period thereafter plus (or minus) the Eurodollar Margin
quoted by the Lender making such Loan in accordance with
Section 2.2; and
(b) if such Competitive Bid Loan is a Set
Rate Loan, the Set Rate for such Loan for the Interest
Period therefor quoted by the Lender making such Loan in
accordance with Section 2.2.
Provided, however, that if any principal of any Loan is not paid
when due (by acceleration or otherwise), such principal shall
thereafter bear interest at a rate per annum equal to the sum of
the Alternate Base Rate from time to time in effect plus 1%.
4.2 Interest Payment Dates. Accrued interest on each
----------------------
Alternate Base Rate Loan shall be payable on the last day of each
January, April, July and October and at maturity. Accrued
interest on each Eurodollar Loan and Competitive Bid Loan shall
be payable on the last day of each Interest Period relating to
such Loan (and, in the case of any Eurodollar Loan with an
Interest Period exceeding three months, on each three-month
anniversary of the first day of such Interest Period) and at
maturity. After maturity, accrued interest on all Loans shall be
payable on demand.
4.3 Setting and Notice of Eurodollar Rates and Eurodollar
-----------------------------------------------------
Competitive Bid Rates. The applicable Eurodollar Rate and
- ---------------------
Eurodollar Competitive Bid Rate for each Interest Period shall be
determined by the Agent, and notice thereof shall be given by the
Agent promptly to the Company and each Lender. Each
determination of the applicable Eurodollar Rate or Eurodollar
Competitive Bid Rate by the Agent shall be conclusive and binding
upon the parties hereto, in the absence of demonstrable error.
The Agent shall, upon written request of the Company or any
Lender, deliver to the Company or such Lender a statement showing
the computations used by the Agent in determining any applicable
Eurodollar Rate or Eurodollar Competitive Bid Rate hereunder.
Each Reference Lender agrees to use reasonable efforts to
timely notify the Agent of its applicable rate for each Interest
Period (as contemplated in the definitions of Eurodollar Rate and
Eurodollar Competitive Bid Rate). If, as to any Interest Period,
any Reference Lender is unable or fails to notify the Agent of
its applicable Eurodollar Rate by 11:00 a.m., Portland time, two
Business Days before such Interest Period, or its applicable
Eurodollar Competitive Bid Rate by 11:00 a.m., Portland time,
four Business Days before such Interest Period, then the
Eurodollar Rate or Eurodollar Competitive Bid Rate, as the case
may be, shall be determined on the basis of the rate of the other
Reference Lender.
4.4 Computation of Interest. Interest shall be computed
-----------------------
for the actual number of days elapsed on the basis of a year of
360 days (or, in the case of Alternate Base Rate Loans bearing
interest at the Alternate Base Rate, 365 or 366 days, as
appropriate). The applicable interest rate for each Alternate
Base Rate Loan shall change simultaneously with each change in
the Alternate Base Rate.
SECTION 5 FEES.
5.1 Facility Fee. The Company agrees to pay to the Agent
------------
for the account of each Lender a facility fee for the period from
and including the Effective Date to but excluding the Termination
Date in an amount equal to 0.120% per annum of the daily average
of the amount of such Lender's Commitment (whether used or
unused). Such facility fee shall be payable in arrears on the
last day of each calendar quarter and on the Termination Date for
any period then ending for which such facility fee shall not have
been theretofore paid. The facility fee shall be computed for
the actual number of days elapsed on the basis of a year of 360
days.
5.2 Agent's Fee. The Company agrees to pay to the Agent
-----------
for its own account such fees as are agreed to from time to time
by the Company and the Agent.
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS.
6.1 Reduction or Termination of the Commitments. The
-------------------------------------------
Company may from time to time on at least five Business Days'
prior written notice received by the Agent (which shall promptly
advise each Lender thereof) permanently reduce the Commitment
Amount to an amount not less than the aggregate unpaid principal
amount of the Loans. Any such reduction shall be in an amount
that is an integral multiple of $5,000,000 and shall be pro rata
among the Lenders according to their respective Percentages. The
Company may at any time on like notice terminate the Commitments
upon payment in full of all Loans and all other obligations of
the Company hereunder.
6.2 Prepayments. The Company may from time to time
-----------
prepay Syndicated Loans in whole or in part, provided that (a)
the Company shall give the Agent (which shall promptly advise
each Lender) written notice thereof not later than 11:00 a.m.,
Portland time, on the date of such prepayment, in the case of
Alternate Base Rate Loans, and not less than two Business Days
prior to the date of such prepayment, in the case of Eurodollar
Loans, in each case specifying the Syndicated Loans to be prepaid
and the date (which shall be a Business Day) and amount of
prepayment, (b) each partial prepayment of Syndicated Loans shall
be in an aggregate principal amount of at least $5,000,000 and an
integral multiple of $1,000,000 and (c) any prepayment of
Eurodollar Loans on a day other than the last day of an Interest
Period therefor shall be subject to Section 8.4. After giving
effect to any prepayment of Eurodollar Loans, each Group of
Eurodollar Loans shall be at least $5,000,000 and an integral
multiple of $1,000,000. Competitive Bid Loans shall not be
prepaid.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF;
TAXES.
7.1 Making of Payments. All payments of principal of or
------------------
interest on the Syndicated Loan Notes and Competitive Bid Loan
Notes, and of all fees, shall be made by the Company to the Agent
in immediately available funds at its office in Portland not
later than 12:00 noon, Portland time, on the date due; and funds
received after that hour shall be deemed to have been received by
the Agent on the immediately following Business Day. The Agent
shall promptly remit to each Lender its share of all payments on
Syndicated Loan Notes received in collected funds by the Agent
for the account of such Lender. The Agent shall promptly remit
to a Lender that made a Competitive Bid Loan all payments on the
applicable Competitive Bid Loan Note received in collected funds
by the Agent for the account of such Lender.
All payments under Sections 8.1 and 8.4 shall be made by the
Company directly to the Lender entitled thereto.
7.2 Application of Certain Payments. Each payment of
-------------------------------
principal shall be applied to such Syndicated Loans or
Competitive Bid Loans as the Company shall direct by notice to be
received by the Agent on or before the date of such payment. In
the absence of such notice, the Agent shall apply such payment
first to such Syndicated Loans then due as the Agent shall
determine in its discretion, and second, if all outstanding
Syndicated Loans then due have been paid in full, to all
outstanding Competitive Bid Loans, such payment to be prorated
among such Competitive Bid Loans based upon the ratio of the
principal amount of a Lender's outstanding Competitive Bid Loans
to the principal amount of all outstanding Competitive Bid Loans.
Concurrently with each remittance to any Lender of its share of
any such payment, the Agent shall advise such Lender as to the
application of such payment.
7.3 Due Date Extension. If any payment of principal or
------------------
interest with respect to any of the Notes, or of any fee, falls
due on a day which is not a Business Day, then such due date
shall be extended to the immediately following Business Day
(unless, in the case of a Eurodollar Loan or Eurodollar
Competitive Bid Loan, such immediately following Business Day is
the first Business Day of a calendar month, in which case such
due date shall be the immediately preceding Business Day), and,
in the case of principal, additional interest shall accrue and be
payable for the period of any such extension.
7.4 Setoff. The Company agrees that the Agent and each
------
Lender have all rights of set-off and bankers' lien provided by
applicable law, and in addition thereto, the Company agrees that
at any time any Unmatured Event of Default under Section 12.1.4
or any Event of Default exists, the Agent and each Lender may
apply to the payment of any obligations of the Company hereunder
(whether or not then due), any and all balances, credits,
deposits, accounts or moneys of the Company (excluding amounts
held in trust accounts for the benefit of Persons other than the
Company) then or thereafter with the Agent or such Lender.
7.5 Proration of Payments on Syndicated Loans. If any
-----------------------------------------
Lender shall obtain by payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on
account of principal of or interest on any Syndicated Loan Note
in excess of its pro rata share of payments and other recoveries
obtained by all Lenders on account of principal of and interest
on all Syndicated Loan Notes (other than any non-pro rata
interest payment resulting from a Syndicated Loan being an
Affected Loan or as a result of replacement of a Lender pursuant
to Section 8.7), such Lender shall purchase from the other
Lenders such participation in the Syndicated Loan Notes held by
them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery ratably with each of
them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery.
7.6 Taxes.
-----
(a) All payments by the Company of principal, interest,
fees, indemnities and other amounts payable hereunder and under
the Notes shall be made to the recipient thereof without setoff
or counterclaim and free and clear of, and without withholding or
deduction for or on account of, any present or future Taxes
(other than Excluded Taxes) now or hereafter imposed on such
recipient or its income, property, assets or franchises (such
recipient's "Recipient Taxes"), except to the extent that such
withholding or deduction (i) is required by applicable law, (ii)
results from the breach by such recipient of its Exemption
Agreement (as defined below) or (iii) would not be required if
such recipient's Exemption Representation (as defined below) were
true. If any such withholding or deduction is required by
applicable law, the Company will:
(A) pay to the relevant authorities the full
amount so required to be withheld or deducted;
(B) promptly forward to the Agent an official
receipt or other documentation satisfactory to the Agent
evidencing such payment to such authorities; and
(C) except to the extent that such withholding or
deduction results from the breach, by the recipient of a
payment, of its Exemption Agreement or would not be required
if such recipient's Exemption Representation were true, pay
to the Agent for the account of the relevant recipient such
additional amount as is necessary to ensure that the net
amount actually received by such recipient will equal the
full amount such recipient would have received had no such
withholding or deduction been required.
For the purposes of this Section 7.6, (a) "Taxes" means, with
respect to any Person, taxes, assessments or other governmental
charges or levies imposed upon such Person, such Person's income
or any of such Person's properties, franchises or assets; and (b)
"Excluded Taxes" means, in the case of payments made to any
Lender or the Agent, all of the following: taxes imposed upon the
overall gross or net income or receipts of such Lender or the
Agent, franchise taxes imposed upon such Lender or the Agent with
respect to its gross or net income or receipts by the
jurisdiction under the laws of which such Lender or the Agent, as
the case may be, is organized or any political subdivision
thereof, and franchise taxes imposed upon such Lender or the
Agent with respect to its gross or net income or receipts by the
jurisdiction in which such Lender's or the Agent's applicable
lending office is located or any political subdivision thereof.
(b) In consideration of the Company's agreements in
clause (a) of this Section 7.6, each Lender which is not
organized under the laws of the United States or a State thereof
hereby agrees (such Lender's "Exemption Agreement"), to the
extent permitted by applicable law (including any applicable
double taxation treaty of the jurisdiction of its incorporation
and the jurisdiction in which its Eurodollar Office is located),
to execute and deliver to the Company (i) on or before the first
date on which any payment is to be made to such Lender hereunder,
a United States Internal Revenue Service Form 1001 or 4224 (or
successor form) and, if reasonably requested by the Company,
Internal Revenue Service Form W-8 or W-9 (or successor form), as
appropriate, in each case properly completed and claiming a
complete exemption, from withholding or deduction for or on
account of Recipient Taxes of such Lender, and (ii) a new Form
1001 or 4224 (or successor form) and, if reasonably requested by
the Company, Internal Revenue Service Form W-8 or W-9 (or
successor form), as appropriate, upon the expiration or
obsolescence of any previously delivered Form.
(c) Each Lender hereby represents and warrants (such
Lender's "Exemption Representation") to the Company that on the
Effective Date (or, if later, the date such Lender becomes a
party to this Agreement) it is entitled to receive payments of
principal of, and interest on, Loans made by such Lender without
withholding or deduction for or on account of such Lender's
Recipient Taxes imposed by the United States of America or any
political subdivision thereof.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
EURODOLLAR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the
---------------
adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation (including, without
limitation, Regulation D of the Board of Governors of the Federal
Reserve System), 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 Lender (or any
Eurodollar Office of such Lender) with any request or directive
(whether or not having the force of law) of any such authority,
central bank or comparable agency
(A) shall subject any Lender (or any Eurodollar
Office of such Lender) to any tax, duty or other charge with
respect to its Eurodollar Loans or Eurodollar Competitive
Bid Loans, its Notes or its obligation to make Eurodollar
Loans or Eurodollar Competitive Bid Loans, or shall change
the basis of taxation of payments to any Lender of the
principal of or interest on its Eurodollar Loans or
Eurodollar Competitive Bid Loans or any other amounts due
under this Agreement in respect of its Eurodollar Loans or
Eurodollar Competitive Bid Loans or its obligation to make
Eurodollar Loans or Eurodollar Competitive Bid Loans (except
for taxes imposed on or measured by the overall gross or net
income or receipts of such Lender or its Eurodollar Office
imposed by the jurisdiction, or any political subdivision
thereof or taxing authority therein, in which such Lender's
principal executive office or Eurodollar Office is located
or in which such Lender is incorporated); or
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System, but
excluding any reserve included in the determination of
interest rates pursuant to Section 4), special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by any Lender (or any
Eurodollar Office of such Lender); or
(C) shall impose on any Lender (or its Eurodollar
Office) any other condition affecting its Eurodollar Loans
or Eurodollar Competitive Bid Loans, its Notes or its
obligation to make Eurodollar Loans or Eurodollar
Competitive Bid Loans; and the result of any of the
foregoing is to increase the cost to (or in the case of
Regulation D referred to above, to impose a cost on) such
Lender (or any Eurodollar Office of such Lender) of making
or maintaining any Eurodollar Loan or Eurodollar Competitive
Bid Loan, or to reduce the amount of any sum received or
receivable by such Lender (or its Eurodollar Office) under
this Agreement or under its Notes with respect thereto, then
within 15 days after demand by such Lender (which demand
shall be accompanied by a statement setting forth the basis
of such demand, a copy of which shall be furnished to the
Agent), the Company shall pay directly to such Lender such
additional amount or amounts as will compensate such Lender
for such increased cost or such reduction.
(b) If, after the Effective Date, any Lender shall
reasonably determine that the adoption or phase-in of any
applicable law, rule or regulation regarding capital adequacy, 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 Lender (or its Eurodollar Office) or any Person
controlling such Lender with 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 such Lender's
or such controlling Person's capital as a consequence of such
Lender's obligations hereunder (including, without limitation,
such Lender's Commitment) to a level below that which such Lender
or such controlling Person could have achieved but for such
adoption, change or compliance (taking into consideration such
Lender's or such controlling Person's policies with respect to
capital adequacy) by an amount deemed by such Lender or such
controlling Person to be material, then from time to time, within
15 days after demand by such Lender (which demand shall be
accompanied by a statement setting forth the basis of such
demand, a copy of which shall be furnished to the Agent), the
Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling Person
for such reduction.
8.2 Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If with respect to any Interest Period:
- ------
(a) the Agent is advised by either Reference Lender that
deposits in Dollars (in the applicable amounts) are not being
offered to such Reference Lender in the relevant market for such
Interest Period, or the Agent otherwise reasonably determines
(which determination shall be binding and conclusive on the
Company) that by reason of circumstances affecting the interbank
eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable Eurodollar Rate; or
(b) Lenders having an aggregate Percentage of 33% or more
advise the Agent that the Eurodollar Rate (Reserve Adjusted) as
determined by the Agent will not adequately and fairly reflect
the cost to such Lenders of maintaining or funding Eurodollar
Loans for such Interest Period, or that the making or funding of
Eurodollar Loans has become impracticable as a result of an event
occurring after the date of this Agreement which in the
reasonable opinion of such Lenders materially affects such Loans,
then the Agent shall promptly notify the other parties thereof
and, so long as such circumstances shall continue, (i) no Lender
shall be under any obligation to make or convert into Eurodollar
Loans and (ii) on the last day of the current Interest Period for
each Eurodollar Loan, such Loan shall, unless then repaid in
full, automatically convert to an Alternate Base Rate Loan.
8.3 Changes in Law Rendering Eurodollar Loans Unlawful.
--------------------------------------------------
In the event that any change in (including the adoption of any
new) applicable laws or regulations, or any change in the
interpretation of applicable laws or regulations by any
governmental or other regulatory body charged with the
administration thereof, should make it (or in the good faith
judgment of any Lender cause a substantial question as to whether
it is) unlawful for any Lender to make, maintain or fund
Eurodollar Loans, then such Lender shall promptly notify each of
the other parties hereto and, so long as such circumstances shall
continue, (a) such Lender shall have no obligation to make or
convert into Eurodollar Loans (but shall make Alternate Base Rate
Loans concurrently with the making of or conversion into
Eurodollar Loans by the Lenders which are not so affected, in
each case in an amount equal to such Lender's Percentage of all
Eurodollar Loans which would be made or converted into at such
time in the absence of such circumstances) and (b) on the last
day of the current Interest Period for each Eurodollar Loan of
such Lender (or, in any event, if such Lender so requests, on
such earlier date as may be required by the relevant law,
regulation or interpretation), such Eurodollar Loan shall, unless
then repaid in full, automatically convert to an Alternate Base
Rate Loan. Each Alternate Base Rate Loan made by a Lender which,
but for the circumstances described in the foregoing sentence,
would be a Eurodollar Loan (an "Affected Loan") shall,
notwithstanding any other provision of this Agreement, remain
outstanding for the same period as the Group of Eurodollar Loans
of which such Affected Loan would be a part absent such
circumstances.
8.4 Funding Losses. The Company hereby agrees that upon
--------------
demand by any Lender (which demand shall be accompanied by a
statement setting forth the basis for the calculations of the
amount being claimed, a copy of which shall be furnished to the
Agent) the Company will indemnify such Lender against any net
loss or expense which such Lender may sustain or incur
(including, without limitation, any net loss or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund or maintain any Eurodollar
Loan or Eurodollar Competitive Bid Loan, but excluding any loss
of margin), as reasonably determined by such Lender, as a result
of (a) any payment or prepayment or conversion of any Eurodollar
Loan of such Lender (including, without limitation, any
conversion pursuant to Section 8.3) or (b) any failure of the
Company to borrow or convert any Eurodollar Loans on a date
specified therefor in a notice of borrowing or conversion
pursuant to this Agreement (other than as a result of a default
by such Lender or the Agent), or to borrow any Eurodollar
Competitive Bid Loan reflected in a Competitive Bid Loan
Acknowledgment (other than as a result of a default by such
Lender or the Agent). For this purpose, all notices to the Agent
pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right of Lenders to Fund through Other Offices. Each
----------------------------------------------
Lender may, if it so elects, fulfill its commitment as to any
Eurodollar Loan or Eurodollar Competitive Bid Loan by causing a
foreign branch or affiliate of such Lender to make such Loan,
provided that in such event for the purposes of this Agreement
such Loan shall be deemed to have been made by such Lender and
the obligation of the Company to repay such Loan shall
nevertheless be to such Lender and shall be deemed held by it, to
the extent of such Loan, for the account of such branch or
affiliate.
8.6 Discretion of Lenders as to Manner of Funding.
---------------------------------------------
Notwithstanding any provision of this Agreement to the contrary,
each Lender shall be entitled to fund and maintain its funding of
all or any part of its Loans in any manner it sees fit, it being
understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Lender had
actually funded and maintained each Eurodollar Loan and
Eurodollar Competitive Bid Loan during each Interest Period for
such Loan through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest
rate equal to the Eurodollar Rate or the Eurodollar Competitive
Bid Rate, as the case may be, for such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Affected
----------------------------------------------------
Lender or Objecting Lender. (a) Each Lender shall promptly
- --------------------------
notify the Company and the Agent of any event of which it has
knowledge which will result in, and will use reasonable
commercial efforts available to it (and not, in such Lender's
sole judgment, otherwise disadvantageous to such Lender) to
mitigate or avoid, (i) any obligation by the Company to pay any
amount pursuant to Section 7.6 or 8.1 (ii) the occurrence of any
circumstance of the nature described in Section 8.2 or 8.3 (and,
if any Lender has given notice of any such event described in
clause (i) or (ii) above and thereafter such event ceases to
exist, such Lender shall promptly so notify the Company and the
Agent). Without limiting the foregoing, each Lender will
designate a different funding office if such designation will
avoid (or reduce the cost to the Company of) any event described
in clause (i) or (ii) of the preceding sentence and such
designation will not, in such Lender's reasonable judgment, be
otherwise disadvantageous to such Lender.
(b) At any time any Lender is an Affected Lender or an
Objecting Lender, the Company may replace such Lender as a party
to this Agreement with one or more other bank(s) or financial
institution(s) reasonably satisfactory to the Agent, such bank(s)
or financial institution(s) to have a Commitment or Commitments,
as the case may be, in such amounts as shall be reasonably
satisfactory to the Agent (and upon notice from the Company such
Affected Lender or Objecting Lender shall assign, without
recourse or warranty, its Commitment, its Loans, its Notes and
all of its other rights and obligations hereunder to such
replacement bank(s) or other financial institution(s) for a
purchase price equal to the sum of the principal amount of the
Loans so assigned, all accrued and unpaid interest thereon, its
ratable share of all accrued and unpaid non-use fees, any amounts
payable under Section 8.4 as a result of such Lender receiving
payment of any Eurodollar Loan prior to the end of an Interest
Period therefor and all other obligations owed to such Affected
Lender or Objecting Lender hereunder).
8.8 Conclusiveness of Statements; Survival of Provisions.
----------------------------------------------------
Determinations and statements of any Lender pursuant to Section
8.1, 8.2, 8.3 or 8.4 shall be conclusive absent demonstrable
error. Lenders may use reasonable averaging and attribution
methods in determining compensation under Sections 8.1 and 8.4,
and the provisions of such Sections shall survive repayment of
the Loans, cancellation of the Notes and any termination of this
Agreement (provided that any claim for compensation by a Lender
under such Sections shall be made to the Company not later than
45 days after the later to occur of repayment in full of the
Loans and termination of the Commitments).
SECTION 9 WARRANTIES.
To induce the Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make Loans hereunder, the
Company warrants to the Agent and the Lenders that:
9.1 Organization, etc. The Company is a corporation duly
------------------
organized, validly existing and in good standing under the laws
of the State of Delaware; each Subsidiary is duly organized and
validly existing under the laws of the jurisdiction of its
organization; and the Company and each Subsidiary is duly
qualified to do business in each other jurisdiction where the
nature of its business makes such qualification necessary, except
where such failure to so qualify would not have a Material
Adverse Effect.
9.2 Authorization; No Conflict. The execution and
--------------------------
delivery by the Company of this Agreement and each Note, the
borrowings hereunder, and the performance by the Company of its
obligations under this Agreement and each Note are within the
corporate powers of the Company, have been duly authorized by all
necessary corporate action on the part of the Company (including
any necessary shareholder action), have received all necessary
governmental approval, and do not and will not (a) violate any
provision of law, rule or regulation or any order, decree,
judgment or award which is binding on the Company or any
Subsidiary, (b) contravene or conflict with, or result in a
breach of, any provision of the Certificate of Incorporation,
Bylaws or other organizational documents of the Company or any
Subsidiary or of any agreement, indenture, instrument or other
document which is binding on the Company or any Subsidiary or (c)
result in, or require, the creation or imposition of any Lien on
any asset of the Company or any Subsidiary.
9.3 Validity and Binding Nature. This Agreement is, and
---------------------------
upon the execution and delivery thereof each Note will be, the
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
9.4 Financial Information. The Company's audited
---------------------
consolidated financial statements as at January 29, 1994 and
unaudited consolidated financial statements as at November 5,
1994, copies of which have been furnished to the Lenders, have
been prepared in accordance with generally accepted accounting
principles (subject, in the case of such unaudited statements, to
the absence of footnotes and to normal year-end adjustments) and
fairly present the financial condition of the Company and its
Subsidiaries on a consolidated basis as of such dates and their
consolidated results of operations for the Fiscal Year and fiscal
period then ended. The Company's confidential operating results
dated February 25, 1995 for the Fiscal Year ended January 28,
1995, copies of which have been furnished to the Lenders, were
prepared by the Company with the best information available as of
the date such report was prepared.
9.5 No Material Adverse Change. Since the date of the
--------------------------
audited financial statements described in Section 9.4, there has
been no event or occurrence which has had or is reasonably likely
to have a Material Adverse Effect.
9.6 Litigation and Contingent Liabilities. Except as set
-------------------------------------
forth in the Company's Annual Report on Form 10-K for the Fiscal
Year ended January 29, 1994 and the Company's Quarterly Report on
Form 10-Q for the Fiscal Quarter ended November 5, 1994, no
litigation (including, without limitation, derivative actions),
arbitration proceeding or governmental proceeding is pending or,
to the Company's knowledge, threatened against the Company or any
Subsidiary which, if adversely decided, is reasonably likely to
result, either individually or collectively, in a Material
Adverse Effect. Other than any liability incident to such
litigation or proceedings, neither the Company nor any Subsidiary
has any material contingent liabilities not provided for or
disclosed in the financial statements referred to in Section 9.4.
9.7 Ownership of Properties; Liens. Each of the Company
------------------------------
and each Subsidiary owns good and sufficient title to, or a
subsisting leasehold interest in, all of its properties and
assets, real and personal, tangible and intangible, of any nature
whatsoever, free and clear of all Liens, except as permitted
pursuant to Section 10.7.
9.8 Subsidiaries. Set forth on Schedule II is a complete
------------
and accurate list of name and jurisdiction of organization of
each Subsidiary of the Company and the percentage ownership
interest of the Company and its other Subsidiaries in each such
Subsidiary.
9.9 Pension and Welfare Plans. During the twelve-
-------------------------
consecutive-month period prior to the date of the execution and
delivery of this Agreement or the making of any Loan hereunder,
no steps have been taken to terminate any Pension Plan, and no
contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a lien under Section 302(f) of
ERISA. No condition exists or event or transaction has occurred
with respect to any Pension Plan which could result in the
incurrence by the Company of any material liability, fine or
penalty.
9.10 Regulated Industry. Neither the Company nor any
------------------
Subsidiary is (a) an "investment company" or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended, or (b) a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
9.11 Regulations G, U and X. Neither the Company nor any
----------------------
Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock, and no proceeds of any
Loan will be used for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying any Margin Stock or
maintaining or extending credit to others for such purpose.
9.12 Taxes. Each of the Company and each Subsidiary has
-----
filed all material tax returns and reports required by law to
have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall
have been set aside on its books.
9.13 Environmental and Safety and Health Matters. To the
-------------------------------------------
best of the knowledge of the Company, after inquiry it has deemed
appropriate, the Company and each Subsidiary is in compliance
with all Environmental Laws and Occupational Safety and Health
Laws where failure to comply could have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received
notice of any claims that any of them is not in compliance in all
material respects with any Environmental Law where failure to
comply could have a Material Adverse Effect.
9.14 Compliance with Law. Each of the Company and each
-------------------
Subsidiary is in compliance with all statutes, judicial and
administrative orders, permits and governmental rules and
regulations which are material to its business or the non-
compliance with which could result in any material fine, penalty
or liability.
9.15 Information. All information heretofore or
-----------
contemporaneously herewith furnished by the Company or any
Subsidiary to any Lender for purposes of or in connection with
this Agreement and the transactions contemplated hereby is, and
all information hereafter furnished by or on behalf of the
Company or any Subsidiary to any Lender pursuant hereto or in
connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or
certified, and such information, taken as a whole, does not and
will not omit to state any material fact necessary to make such
information, taken as a whole, not misleading.
SECTION 10 COVENANTS.
Until the expiration or termination of the Commitments and
thereafter until all obligations hereunder and under the Notes
are paid in full, the Company agrees that, unless at any time the
Required Lenders shall otherwise expressly consent in writing, it
will:
10.1 Reports, Certificates and Other Information. Furnish
-------------------------------------------
to each Lender:
10.1.1 Audit Report. Promptly when available and in
------------
any event within 100 days after the close of each Fiscal Year, a
copy of the annual audit report of the Company and its
Subsidiaries for such Fiscal Year, including therein a
consolidated balance sheet of the Company and its Subsidiaries as
of the end of such Fiscal Year and consolidated statements of
earnings and cash flow of the Company and its Subsidiaries for
such Fiscal Year certified, without disclaimer of opinion and
without qualification as to going concern, by Deloitte & Touche
or other independent auditors of recognized national standing
selected by the Company, together with a certificate from such
accountants to the effect that, in making the examination
necessary for the signing of such annual report by such auditors,
they have not become aware of any Event of Default or Unmatured
Event of Default that has occurred and is continuing or, if they
have become aware of any such event, describing it in reasonable
detail.
10.1.2 Interim Reports. Promptly when available and
---------------
in any event within 60 days after the end of each Fiscal Quarter
(except the last Fiscal Quarter of each Fiscal Year), a
consolidated balance sheet of the Company and its Subsidiaries as
of the end of such quarter, and consolidated statements of
earnings and cash flow for such quarter and for the period
beginning with the first day of such Fiscal Year and ending on
the last day of such quarter, together with a certificate of the
President, the Chief Financial Officer, the Controller or the
Treasurer of the Company to the effect that such financial
statements fairly present the financial condition and results of
operations of the Company and its Subsidiaries as of the date and
periods indicated (subject to normal year-end adjustments).
10.1.3 Compliance Certificate. Concurrently with
----------------------
each set of financial statements delivered pursuant to Section
10.1.1 and 10.1.2, a certificate of the President, the Chief
Financial Officer, the Controller or the Treasurer of the Company
(a) to the effect that such officer is not aware of any Event of
Default or Unmatured Event of Default that has occurred and is
continuing or, if there is any such event, describing it in
reasonable detail, and (b) containing a computation of each of
the financial ratios and restrictions set forth in Section 10.6.
10.1.4 Reports to SEC. Promptly upon the filing or
--------------
sending thereof, a copy of any annual, periodic or special report
or registration statement (inclusive of exhibits thereto) filed
by the Company or any Subsidiary with the SEC or any securities
exchange and of each communication from the Company or any
Subsidiary to shareholders generally.
10.1.5 Notice of Default, Litigation and ERISA Matters.
-----------------------------------------------
Immediately upon becoming aware of any of the following, written
notice describing the same and the steps being taken by the Company
or the Subsidiary affected thereby with respect thereto: (a) the
occurrence of an Event of Default or an Unmatured Event of Default;
(b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Company to the Lenders
which has been instituted or, to the knowledge of the Company, is
threatened against the Company or any Subsidiary or to which any
of the assets of any thereof is subject which, if adversely
determined, is reasonably likely to have a Material Adverse Effect;
(c) the institution of any steps by the Company, any of its
Subsidiaries or any other Person to terminate any Pension Plan,
or the failure to make a required contribution to any Pension Plan
if such failure is sufficient to give rise to a lien under
Section 302(f) of ERISA, or the taking of any action with respect
to a Pension Plan which could result in the requirement that the
Company furnish a bond or other security to the PBGC or such
Pension Plan, or the occurrence of any event with respect to
any Pension Plan which could result in the incurrence by the
Company of any material liability, fine or penalty, or any material
increase in the contingent liability of the Company with respect
to any post-retirement Welfare Plan benefit; and (d) any other event
or occurrence which has had or is reasonably likely to have a
Material Adverse Effect.
10.1.6 Subsidiaries. Promptly from time to time a
------------
written report of any change in the list of its Subsidiaries.
10.1.7 Other Information. From time to time such
-----------------
other information concerning the Company and its Subsidiaries as
any Lender or the Agent may reasonably request.
10.2 Books, Records and Inspections. Keep, and cause each
------------------------------
Subsidiary to keep, its books and records reflecting all of its
business affairs and transactions in accordance with sound
business practices sufficient to allow the preparation of the
Company's consolidated financial statements in accordance with
GAAP; and permit, and cause each Subsidiary to permit, any Lender
or the Agent or any representative thereof, at such Lender's or
the Agent's expense unless an Event of Default exists, during
reasonable business hours and on reasonable notice, to visit any
or all of its offices, to discuss its financial matters with its
officers and its independent auditors (and the Company hereby
authorizes such independent auditors to discuss such financial
matters with any Lender or the Agent or any representative
thereof), and to examine (and make copies of) any of its books or
other corporate records.
10.3 Insurance. Maintain, and cause each Subsidiary to
---------
maintain, with responsible and financially-sound insurance
companies or associations, insurance in such amounts and covering
such risks (and having such deductibles and self-insurance) as is
usually maintained by companies engaged in similar businesses and
owning similar properties similarly situated.
10.4 Compliance with Law; Payment of Taxes and Liabilities.
-----------------------------------------------------
(a) Comply, and cause each Subsidiary to comply, in all material
respects with all applicable laws, rules, regulations and orders
the non-compliance with which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect;
and (b) pay, and cause each Subsidiary to pay, prior to delinquency,
all taxes and other governmental charges against it or any of its
assets, provided, however, that the foregoing shall not require
the Company or any Subsidiary to pay any such tax or charge so long
as it shall contest the validity thereof in good faith by appropriate
proceedings and shall set aside on its books adequate reserves
with respect thereto.
10.5 Maintenance of Existence, etc. Maintain and
------------------------------
preserve, and (subject to Section 10.10) cause each Subsidiary to
maintain and preserve, (a) its existence and good standing in the
jurisdiction of its organization and (b) its foreign
qualification in each other jurisdiction where the nature of its
business makes such qualification necessary (except in those
instances in which the failure to be qualified or in good
standing will not have a Material Adverse Effect).
10.6 Financial Ratios and Restrictions.
---------------------------------
10.6.1 Minimum Consolidated Tangible Net Worth. Not
---------------------------------------
at any time permit Consolidated Tangible Net Worth to be less
than the sum of (a) $425,000,000 plus (b) 50% of the Company's
cumulative consolidated net earnings for all Fiscal Quarters
ending after January 30, 1994 (but disregarding any Fiscal
Quarter in which there is a loss) plus (c) 50% of the amount by
which the shareholders' equity of the Company is increased by the
issuance of capital stock (or the exercise of warrants or options
in respect thereof) after January 30, 1994.
10.6.2 Long-Term Liabilities to Net Worth Ratio.
----------------------------------------
Not at any time permit the ratio of Consolidated Long-Term
Liabilities to Consolidated Tangible Net Worth to exceed 1.5
to 1.
10.6.3 Fixed Charge Coverage Ratio. Not permit the
---------------------------
Fixed Charge Coverage Ratio as of the last day of any Fiscal
Quarter to be less than 1.4 to 1.
10.7 Limitation on Liens. Not, and not permit any
-------------------
Material Subsidiary to, create or permit to exist any Lien with
respect to any assets now owned or hereafter acquired, except:
(a) Liens existing on the date of this Agreement;
(b) Liens created by or resulting from any litigation or
legal proceeding which is currently being contested
in good faith by appropriate proceedings unless the
judgment secured thereby shall not have been stayed,
bonded or discharged within 60 days;
(c) Liens incidental to the normal conduct of business of
the Company or any Material Subsidiary or the
ownership of their respective assets, and Liens to
secure the performance of bids, tenders or trade
contracts, materialmens, and mechanics, liens, and
Liens to secure statutory obligations, surety or
appeal bonds, or other Liens of like general nature,
in each case which are not incurred in connection
with the incurrence of Debt and which do not in the
aggregate impair the use of any such asset in the
operation of the business of the Company or any
Material Subsidiary or the value of any such asset
for the purposes of any such business;
(d) pledges or deposits to secure obligations under
workers' compensation and unemployment compensation
laws or similar legislation to secure public or
statutory obligations of the Company or any Material
Subsidiary;
(e) any Lien (i) on assets (including Liens arising under
Capital Leases) imposed in connection with the
financing of all or part of the purchase price
therefor or on the cost of the construction,
extension or improvement of any new or existing
asset, provided that such Lien is created
contemporaneously with, or within 270 days after,
such acquisition, completion of such construction,
such extension or such improvement, (ii) existing on
assets at the time of the acquisition thereof by the
Company or any Material Subsidiary, (iii) existing on
assets or the outstanding shares or Debt of a
corporation at the time such corporation is merged
into or consolidated with the Company or any Material
Subsidiary or at the time of a sale, lease or other
disposition of the assets or outstanding shares or
Debt of a corporation or firm as an entirety to the
Company or any Material Subsidiary, or (iv) arising
in connection with the purchase of inventory,
supplies or services from trade creditors on
customary business terms; provided that the amount
secured by any Lien described in this clause (e)
shall not exceed the lesser of the fair market value
or cost of the related asset at the time of the
imposition of such Lien;
(f) Liens associated with any tenant's leasehold interest
in any asset of the Company or a Material Subsidiary
incurred solely in conjunction with leasing such
asset;
(g) Liens for taxes or assessments or other governmental
charges or levies which either are not yet due and
payable or are currently being contested in good
faith by appropriate proceedings;
(h) Liens securing Debt of a Material Subsidiary owing to
the Company or another Material Subsidiary;
(i) the extension, renewal or replacement of any Lien
permitted by the foregoing clauses of this Section
10.7 in respect of the same asset subject to such
Lien (but without increase in the principal amount of
the Debt secured thereby);
(j) minor survey exceptions or minor encumbrances,
easements or reservations, or rights of others for
rights-of-way, utilities and other similar purposes,
or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of
the activities of the Company and its Material
Subsidiaries or which customarily exist on properties
of Persons engaged in similar activities and
similarly situated and which do not in any event
materially impair their use in the operation of the
business of the Company and its Material
Subsidiaries; and
(k) Liens not otherwise permitted by the foregoing
clauses of this Section 10.7 so long as the sum,
without duplication, of (x) all obligations secured
by such Liens and (y) Debt of Material Subsidiaries
permitted solely by clause (f) of Section 10.8 does
not exceed 15% of Consolidated Total Assets.
10.8 Debt. Not permit any Material Subsidiary to incur or
----
permit to exist any Debt, except:
(a) Debt owed to the Company or to another Material
Subsidiary;
(b) Debt outstanding on the date hereof;
(c) Debt secured by Liens permitted by clause (e) of
Section 10.7;
(d) Debt outstanding when such entity becomes a Material
Subsidiary or is merged or consolidated with another
Material Subsidiary;
(e) Debt in respect of commercial letters of credit
issued to support the purchase of goods by the
applicable Material Subsidiary in the ordinary course
of business; and
(f) Debt not otherwise permitted by the foregoing clauses
of this Section 10.8 so long as the sum, without
duplication, of (x) all such Debt and (y) all
obligations secured by Liens permitted solely by
clause (k) of Section 10.7 does not exceed 15% of
Consolidated Total Assets.
10.9 Guaranties, Loans and Advances. Not, and not permit
------------------------------
any Material Subsidiary to, become or be a guarantor or surety
of, or otherwise become or be responsible in any manner (whether
by agreement to purchase any obligations, stock, assets, goods or
services, or to supply or advance any funds, assets, goods or
services, or otherwise) with respect to, any undertaking of any
other Person or make or permit to exist any loans or advances to
any other Person, except for (i) the endorsement, in the ordinary
course of collection, of instruments payable to it or to its
order, (ii) loans or advances constituting indebtedness of
Subsidiaries to the Company or to other Subsidiaries or of the
Company to Subsidiaries, guaranties by the Company of the
obligations of Subsidiaries and guaranties by Subsidiaries of
obligations of the Company and of other Subsidiaries, (iii)
advances not to exceed, in the aggregate for Company and all
Material Subsidiaries at any one time outstanding, $100,000 to
officers, employees, subcontractors or suppliers, (iv) loans or
advances to employees in connection with the purchase of the
Company's stock under Management Stock Agreements, (v) advances
to employees for moving and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business, (vi)
notes to the Company from Frontier Associates in the amount of
$5,000,000, (vii) guaranties provided for in Section 1.9 of the
Assets Purchase Agreement, (viii) continuing obligations of the
Company or any Subsidiary, not exceeding $9,000,000 in the
aggregate for the Company and all Subsidiaries payable during any
Fiscal Year, as assignor of any lease or other agreement which
has been assigned to any other Person, (ix) guaranties by Company
or any Subsidiary of the performance of obligations of
Subsidiaries (other than obligations constituting Debt for
Borrowed Money except for obligations under Capital Leases)
entered into in the ordinary course of business, and (x) letters
of credit issued to Multiemployer Plans.
10.10 Mergers, Consolidations, Sales. Not, and not permit
------------------------------
any Material Subsidiary (or Subsidiary that would become a
Material Subsidiary as a result of such transaction) to, be a
party to any merger or consolidation, or, except in the ordinary
course of its business, sell, transfer, convey or lease all or
any substantial part of its assets or sell or assign with or
without recourse any receivables, except that (a) the Company may
be a party to a merger or consolidation if the Company is the
surviving corporation and no Event of Default or Unmatured Event
of Default exists or would result from such merger or
consolidation, and (b) any Subsidiary may be a party to a merger
or consolidation, or sell all or substantially all of its assets,
if the Company (directly or indirectly through its Subsidiaries)
maintains a percentage of ownership of the surviving or acquiring
corporation similar to its percentage of ownership of the prior
or selling Subsidiary and no Event of Default or Unmatured Event
of Default, exists or would result from such merger,
consolidation or sale. Notwithstanding the foregoing, the
Company or any Material Subsidiary may contribute all of the
stock of, or all or substantially all of the assets of, a
Material Subsidiary to a joint venture which is at least 50%
owned by the Company or a Material Subsidiary so long as (i) no
Event of Default or Unmatured Event of Default exists or would
result therefrom and (ii) the aggregate amount so contributed by
the Company or any Material Subsidiary in any Fiscal Year will
not exceed 5% of the assets of the Company and its Subsidiaries
as of the end of the preceding Fiscal Year.
10.11 Company's and Subsidiaries' Stock. Not permit any
---------------------------------
Subsidiary to purchase or otherwise acquire any shares of capital
stock of the Company; and not take any action, or permit any
Subsidiary to take any action, which will, so long as any shares
of capital stock or Debt of any corporation which is a Subsidiary
at the date of this Agreement are owned by the Company or any
Subsidiary, result in a decrease in the percentage of the
outstanding shares of capital stock of such corporation owned at
the date of this Agreement by the Company and its other
Subsidiaries, except that the Company or any Subsidiary may sell
or otherwise dispose of stock or ownership interests in any
Subsidiary that is not a Material Subsidiary for arms-length
consideration. Notwithstanding the foregoing, the Company or any
Material Subsidiary may contribute all of the stock of, or all or
substantially all of the assets of, a Material Subsidiary to a
joint venture which is at least 50% owned by the Company or a
Material Subsidiary so long as (i) no Event of Default or
Unmatured Event of Default exists or would result therefrom and
(ii) the aggregate amount so contributed by the Company or any
Material Subsidiary in any Fiscal Year will not exceed 5% of the
assets of the Company and its Subsidiaries as of the end of the
preceding Fiscal Year.
10.12 Unconditional Purchase Obligations. Not, and not
----------------------------------
permit any Material Subsidiary to, enter into or be a party to
any contract for the purchase of materials, supplies or other
property or services, if such contract requires that payment be
made by it regardless of whether or not delivery is ever made of
such materials, supplies or other property or services.
10.13 Employee Benefit Plans. Maintain, and cause each
----------------------
Subsidiary to maintain, each Pension Plan in compliance in all
material respects with all applicable requirements of law and
regulations, and make all required contributions to Multiemployer
Plans.
10.14 Purchase or Redemption of Company's Securities;
-----------------------------------------------
Dividend Restriction. Not purchase or redeem any shares of
- --------------------
capital stock of the Company, declare or pay any dividends
thereon (other than stock dividends or cash dividends as provided
for below), make any distribution to stockholders or set aside
any funds for any such purpose, and not prepay, purchase, defease
or redeem, and not permit any Subsidiary to purchase, any
subordinated Debt of the Company; provided that, so long as no
Event of Default or Unmatured Event of Default exists or could
result therefrom, the Company may (a) redeem shares from
employees upon termination of employment or thereafter as
provided in the Management Stock Agreements in amounts paid in
cash (including amounts paid on account of principal of Debt
issued in redemption of such stock) not exceeding in any Fiscal
Year the greater of $10,000,000 or 5% of Consolidated Net
Tangible Net Worth as of the end of the preceding Fiscal Year;
(b) repurchase or redeem shares from persons upon the exercise of
stock options in amounts (including amounts paid on account of
principal of Debt issued in redemption of such stock) not
exceeding, in any Fiscal Quarter, the sum of $500,000 plus the
additional amount, if any, that, when added to the $500,000
amount, would cause the shareholders' equity of the Company
(measured at the end of the Fiscal Quarter in which such
redemption or repurchase takes place) to be not lower than at the
end of the immediately preceding quarter; and (c) pay cash
dividends to its shareholders or repurchase its stock in an
aggregate amount, in any Fiscal Year, not exceeding 40% of its
consolidated net earnings for the prior Fiscal Year.
10.15 Use of Proceeds. Use the proceeds of the Loans for
---------------
working capital and for other general corporate purposes; and not
use or permit any proceeds of any Loan to be used, either
directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of (a) "purchasing or carrying" any
Margin Stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended from time to
time, or (b) purchasing or otherwise acquiring any stock of any
Person if such Person (or its board of directors) has (i)
announced that it will oppose such purchase or other acquisition
or (ii) commenced any litigation which alleges that such purchase
or other acquisition violates, or will violate, any applicable
law.
SECTION 11 CONDITIONS OF LENDING.
The obligation of each Lender to make its Loans is subject
to the following conditions precedent:
11.1 Initial Loan. The obligation of each Lender to make
------------
its initial Loan is, in addition to the conditions precedent
specified in Section 11.2, subject to the conditions precedent
(and the date on which all such conditions precedent have been
satisfied or waived in writing by the Lenders is herein called
the "Effective Date") that the Agent shall have received
evidence, reasonably satisfactory to the Agent, that all of the
following documents, each duly executed and dated the Effective
Date (or such other date as shall be satisfactory to the Agent),
in form and substance satisfactory to the Agent, and each (except
for the Notes, of which only the originals shall be signed) in
sufficient number of signed counterparts to provide one for each
Lender:
11.1.1 Notes. The Notes of the Company payable to
-----
the order of the Lenders.
11.1.2 Resolutions. Certified copies of resolutions
-----------
of the Board of Directors of the Company authorizing or ratifying
the execution, delivery and performance by the Company of this
Agreement, the Notes and the other documents to be executed by
the Company pursuant hereto.
11.1.3 Consents, etc. Certified copies of all
--------------
documents evidencing any consents and governmental approvals (if
any) required for the execution, delivery and performance by the
Company of this Agreement and the Notes.
11.1.4 Incumbency and Signature Certificates. An
-------------------------------------
incumbency and signature certificate of the Company certifying
the names of the officer or officers of the Company authorized to
sign this Agreement, the Notes and the other documents required
to be delivered by the Company in connection with this Agreement,
together with a sample of the true signature of each such officer
(it being understood that the Agent and each Lender may
conclusively rely on such certificate until formally advised by a
like certificate of any changes therein).
11.1.5 Opinion of Counsel for the Company. The
----------------------------------
opinion of Stoel Rives Boley Jones & Grey, counsel to the
Company, substantially in the form of Exhibit I.
11.1.6 Other. Such other documents as the Agent or
-----
any Lender may reasonably request.
11.2 All Loans. The obligation of each Lender to make
---------
each Loan is subject to the following further conditions
precedent that:
11.2.1 No Default. (a) No Event of Default or
----------
Unmatured Event of Default has occurred and is continuing or will
result from the making of such Loan and (b) the warranties of the
Company contained in Section 9 (excluding Sections 9.6 and 9.8)
are true and correct in all material respects as of the date of
such requested Loan, with the same effect as though made on such
date.
11.2.2 Confirmatory Certificate. If requested by
------------------------
the Agent or any Lender, the Agent shall have received (in
sufficient counterparts to provide one to each Lender) a
certificate dated the date of such requested Loan and signed by a
duly authorized officer of the Company as to the matters set out
in Section 11.2.1 (it being understood that each request by the
Company for the making of a Loan shall be deemed to constitute a
warranty by the Company that the conditions precedent set forth
in Section 11.2.1 will be satisfied at the time of the making of
such Loan), together with such other documents as the Agent or
any Lender may reasonably request in support thereof.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 Events of Default. Each of the following shall
-----------------
constitute an Event of Default under this Agreement:
12.1.1 Non-Payment of the Loans, etc. Default in
------------------------------
the payment when due of any principal of any Loan; or default,
and continuance thereof for five days, in the payment when due of
any interest on any Loan or any fee or other amount payable by
the Company hereunder.
12.1.2 Non-Payment of Other Debt. Any default shall
-------------------------
occur under the terms applicable to any Debt of the Company or
any Subsidiary in an aggregate amount (for all Debt so affected)
exceeding $5,000,000 and such default shall (a) consist of the
failure to pay such Debt when due (subject to any applicable
grace period), whether by acceleration or otherwise, or (b)
accelerate the maturity of such Debt or permit the holder or
holders thereof, or any trustee or agent for such holder or
holders, to cause such Debt to become due and payable prior to
its expressed maturity.
12.1.3 Other Material Obligations. Default in the
--------------------------
payment when due of any obligation of $5,000,000 or more of the
Company or any Subsidiary with respect to any material purchase
or lease of goods or services (except only to the extent that the
existence of any such default is being contested by the Company
or such Subsidiary in good faith and by appropriate proceedings
and appropriate reserves have been made in respect of such
default), and continuance of such default for 30 days after
notice thereof from the Agent or any Lender.
12.1.4 Bankruptcy, Insolvency, etc. The Company or
----------------------------
any Material Subsidiary becomes insolvent or generally fails to
pay, or admits in writing its inability or refusal to pay, debts
as they become due; or the Company or any Material Subsidiary
applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for the Company or such
Material Subsidiary or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of
such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for the Company or any Material
Subsidiary or for a substantial part of the property of any
thereof and is not discharged within 60 days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is commenced in respect of the Company or
any Material Subsidiary, and if such case or proceeding is not
commenced by the Company or such Material Subsidiary, it is
consented to or acquiesced in by the Company or such Material
Subsidiary, or remains for 60 days undismissed; or the Company or
any Material Subsidiary takes any corporate action to authorize,
or in furtherance of, any of the foregoing.
12.1.5 Non-Compliance with Provisions of This Agreement.
------------------------------------------------
Failure by the Company to comply with or to perform any provision
of this Agreement (and not constituting an Event of Default under
any of the other provisions of this Section 12) and continuance
of such failure for 30 days after notice thereof to the Company
from the Agent or any Lender.
12.1.6 Warranties. Any warranty made by the Company
----------
herein is breached or is false or misleading in any material
respect, or any schedule, certificate, financial statement,
report, notice or other writing furnished by the Company to the
Agent or any Lender is false or misleading in any material
respect on the date as of which the facts therein set forth are
stated or certified.
12.1.7 Pension Plans. (i) Institution of any steps
-------------
by the Company or any other Person to terminate a Pension Plan if
as a result of such termination the Company could be required to
make a contribution to such Pension Plan, or could incur a
liability or obligation to such Pension Plan, in excess of
$5,000,000, or (ii) a contribution failure occurs with respect to
any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA.
12.1.8 Withdrawal Liability Under Multiemployer Plans.
----------------------------------------------
The Company or any ERISA Affiliate shall make a complete or partial
withdrawal from a Multiemployer Plan and the plan sponsor of such
Multiemployer Plan shall notify such withdrawing employer that such
employer has incurred a withdrawal liability in an annual amount
exceeding $5,000,000, unless and only for as long as such liability
shall be contested in good faith and such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been
made therefor.
12.1.9 Judgments and Attachments. Any money
-------------------------
judgment, writ or warrant of attachment or similar process
involving in any case a final judgment in an amount in excess of
$5,000,000 shall be entered or filed against the Company or any
Material Subsidiary or any of their respective assets and shall
remain unsatisfied, undischarged, unvacated, unbonded or unstayed
for a period of 60 days or in any event later than five days
prior to the date of any proposed sale thereunder.
12.1.10 Change in Control. Any Change in Control shall
-----------------
occur.
12.2 Effect of Event of Default. If any Event of Default
--------------------------
described in Section 12.1.4 shall occur, the Commitments (if they
have not theretofore terminated) shall immediately terminate and
the Notes and all other obligations hereunder shall become
immediately due and payable, all without presentment, demand,
protest or notice of any kind; and if any other Event of Default
occurs and is continuing, the Agent may, and upon written request
of the Required Lenders shall, by written notice to the Company
declare the Commitments (if they have not theretofore terminated)
to be terminated and/or declare all Notes and all other
obligations hereunder to be due and payable, whereupon the
Commitments (if they have not theretofore terminated) shall
immediately terminate and/or all Notes and all other obligations
hereunder shall become immediately due and payable, all without
presentment, demand, protest or other notice of any kind.
Notwithstanding the foregoing, the effect as an Event of Default
of any event described in Section 12.1.1 or Section 12.1.4 may be
waived by the written concurrence of all of the Lenders, and the
effect as an Event of Default of any other event described in
this Section 12 may be waived by the written concurrence of the
Required Lenders.
SECTION 13 THE AGENT.
13.1 Authorization. Each Lender authorizes the Agent to
-------------
act on behalf of such Lender to the extent provided herein or in
any other document or instrument delivered hereunder or in
connection herewith, and to take such other action as may be
reasonably incidental thereto.
13.2 Indemnification. Each Lender agrees to reimburse and
---------------
indemnify the Agent for, and hold the Agent harmless against, a
share (determined in accordance with such Lender's Percentage) of
any loss, damage, penalty, action, judgment, obligation, cost,
disbursement, liability or expense (including reasonable
attorneys' fees) which may at any time be incurred by the Agent
(and for which the Agent is not reimbursed by the Company)
arising out of or in connection with the performance of its
obligations or the exercise of its powers hereunder or any other
document or instrument delivered hereunder or in connection
herewith, as well as the costs and expenses of defending against
any claim against the Agent arising hereunder or thereunder,
provided that no Lender shall be liable for any of the foregoing
which are determined by a court of competent jurisdiction in a
final proceeding to have resulted solely from the Agent's gross
negligence or willful misconduct. The provisions of this Section
13.2 shall survive repayment of the Loans, cancellation of the
Notes and any termination of this Agreement.
13.3 Exculpation. The Agent shall be entitled to rely
-----------
upon advice of counsel concerning legal matters, and upon this
Agreement and any schedule, certificate, statement, report,
notice or other writing which it believes to be genuine or to
have been presented by a proper person. Neither the Agent nor
any of its directors, officers, employees or agents shall (i) be
responsible for any recitals, representations or warranties
contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of, this Agreement or any other
instrument or document delivered hereunder or in connection
herewith, (ii) be responsible for the validity, genuineness,
perfection, effectiveness, enforceability, existence, value or
enforcement of any collateral security, (iii) be under any duty
to inquire into or pass upon any of the foregoing matters, or to
make any inquiry concerning the performance by the Company or any
other obligor of its obligations, or (iv) in any event, be liable
as such for any action taken or omitted by it or them, except for
its or their own gross negligence or willful misconduct. The
agency hereby created shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon,
the Agent in its individual capacity.
13.4 Credit Investigation. Each Lender acknowledges that
--------------------
it has made such inquiries and taken such care on its own behalf
as would have been the case had such Lender's Commitment been
granted and such Lender's Loans been made directly by such Lender
to the Company without the intervention of the Agent or any other
Lender. Each Lender agrees and acknowledges that the Agent makes
no representations or warranties about the creditworthiness of
the Company or any other party to this Agreement or with respect
to the legality, validity, sufficiency or enforceability of this
Agreement or any Note or the value of any security therefor.
13.5 Agent and Affiliates. The Agent in its individual
--------------------
capacity shall have the same rights and powers hereunder as any
other Lender and may exercise or refrain from exercising the same
as though it were not the Agent, and the Agent and its affiliates
may accept deposits from and generally engage in any kind of
business with the Company or any affiliate thereof as if the
Agent were not the Agent hereunder.
13.6 Action on Instructions of the Required Lenders. As
----------------------------------------------
to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement of this Agreement and
collection of the Loans), the Agent shall not be required to
exercise any discretion or take any action, but the Agent shall
in all cases be fully protected in acting or refraining from
acting upon the written instructions (i) from the Required
Lenders, except for instructions which under the express
provisions hereof must be received by the Agent from all Lenders,
and (ii) in the case of such instructions, from all Lenders. In
no event will the Agent be required to take any action which
exposes the Agent to personal liability or which is contrary to
this Agreement or applicable law. The relationship between the
Agent and the Lenders is and shall be that of agent and principal
only and nothing herein contained shall be construed to
constitute the Agent a trustee for any holder of a Note or of a
participation therein nor to impose on the Agent duties and
obligations other than those expressly provided for herein.
13.7 Funding Reliance. (a) Unless the Agent receives
----------------
notice from a Lender by 12:00 noon, Portland time, on the day of
a proposed borrowing that such Lender will not make available to
the Agent the amount which would constitute its Percentage of
such borrowing in accordance with Section 2.1.3, the Agent may
assume that such Lender has made such amount available to the
Agent and, in reliance upon such assumption, make a corresponding
amount available to the Company. If and to the extent such
Lender has not made any such amount available to the Agent, such
Lender and the Company jointly and severally agree to repay such
amount to the Agent forthwith on demand, together with interest
thereon (i) in the case of the Company, the interest rate
applicable to Loans comprising such borrowing and (ii) in the
case of such Lender, the Federal Funds Rate (or, beginning on the
third Business Day after demand, the rate set forth in clause
(i)). Nothing set forth in this clause (a) shall relieve any
Lender of any obligation it may have to make any Loan hereunder.
(b) Unless the Agent receives notice from the Company
prior to the due date for any payment hereunder that the Company
does not intend to make such payment, the Agent may assume that
the Company has made such payment and, in reliance upon such
assumption, make available to each Lender its share of such
payment. If and to the extent that the Company has not made any
such payment to the Agent, each Lender which received a share of
such payment shall repay such share (or the relevant portion
thereof) to the Agent forthwith on demand, together with interest
thereon at the Federal Funds Rate (or, beginning on the third
Business Day after demand, at the Alternate Base Rate). Nothing
set forth in this clause (b) shall relieve the Company of any
obligation it may have to make any payment hereunder.
13.8 Resignation. The Agent may resign as such at any
-----------
time upon at least 30 days' prior notice to the Company and the
Lenders. In the event of any such resignation, the Required
Lenders (with, so long as no Event of Default or Unmatured Event
of Default exists, the consent of the Company, which consent
shall not be unreasonably delayed or withheld) shall as promptly
as practicable appoint a successor Agent. If no successor shall
have been so appointed, and shall have accepted such appointment,
within 30 days after the giving of notice of such resignation,
then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under
the laws of the United States of America having a combined
capital, surplus and undivided profits of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to
and become vested with all rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged
from all further duties and obligations under this Agreement.
After any resignation pursuant to this Section 13.8, the
provisions of this Section 13 shall inure to the benefit of the
retiring Agent as to any actions taken or omitted to be taken by
it while it was Agent hereunder.
SECTION 14 GENERAL.
14.1 Waiver; Amendments. No delay on the part of the
------------------
Agent or any Lender in the exercise of any right, power or remedy
shall operate as a waiver thereof, nor shall any single or
partial exercise by any of them of any right, power or remedy
preclude other or further exercise thereof, or the exercise of
any other right, power or remedy. No amendment, modification or
waiver of, or consent with respect to, any provision of this
Agreement or the Notes shall in any event be effective unless the
same shall be in writing and signed and delivered by the Agent
and signed and delivered by Lenders having an aggregate
Percentage of not less than the aggregate Percentage expressly
designated herein with respect thereto or, in the absence of such
designation as to any provision of this Agreement or the Notes,
by the Required Lenders, and then any such amendment,
modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
No amendment, modification, waiver or consent shall (i) extend or
increase the Commitment Amount, (ii) extend the date for payment
of any principal of or interest on the Loans or any fees payable
hereunder, (iii) reduce the principal amount of any Loan, the
rate of interest thereon or any fees payable hereunder, (iv)
change the definition of Required Lenders or otherwise reduce the
aggregate Percentage required to effect an amendment,
modification, waiver or consent or (v) amend this sentence
without, in each case, the consent of all Lenders. No provisions
of Section 13 shall be amended, modified or waived without the
written consent of the Agent.
14.2 Confirmations. The Company and each holder of a Note
-------------
agree from time to time, upon written request received by it from
the other, to confirm to the other in writing (with a copy of
each such confirmation to the Agent) the aggregate unpaid
principal amount of the Loans then outstanding under such Note.
14.3 Notices. Except as otherwise provided in Sections
-------
2.1.3 and 2.1.4, all notices hereunder shall be in writing
(including, without limitation, facsimile transmission) and shall
be sent to the applicable party at its address shown below its
signature hereto or at such other address as such party may, by
written notice received by the other party, have designated as
its address for such purpose. Notices sent by facsimile
transmission shall be deemed to have been given when receipt is
confirmed by confirming transmission equipment or acknowledged by
the addressee; notices sent by mail shall be deemed to have been
given three Business Days after the date when sent by registered
or certified mail, postage prepaid; and notices sent by hand
delivery shall be deemed to have been given when received. For
purposes of Sections 2.1.3 and 2.1.4, the Agent shall be entitled
to rely on telephonic instructions from any person that the Agent
in good faith believes is an authorized officer or employee of
the Company, and the Company shall hold the Agent and each Lender
harmless from any loss, cost or expense resulting from any such
reliance.
14.4 Subsidiary References. The provisions of this
---------------------
Agreement relating to Subsidiaries shall apply only during such
times as the Company has one or more Subsidiaries.
14.5 Regulation U. Each Lender represents that it in good
------------
faith is not relying, either directly or indirectly, upon any
Margin Stock as collateral security for the extension or
maintenance by it of any credit provided for in this Agreement.
14.6 Costs, Expenses and Taxes. The Company agrees to pay
-------------------------
on demand all reasonable out-of-pocket costs and expenses of the
Agent (including the fees and charges of counsel for the Agent
and of local counsel, if any, who may be retained by said
counsel) in connection with the preparation, execution and
delivery of this Agreement and all other documents provided for
herein or delivered or to be delivered hereunder or in connection
herewith (including, without limitation, any amendment,
supplement or waiver to this Agreement or any such other
document). The Company further agrees to pay all reasonable
out-of-pocket costs and expenses (including reasonable attorneys'
fees, court costs and other legal expenses and allocated costs of
staff counsel) incurred by the Agent and each Lender after the
occurrence of an Event of Default in enforcing any right
hereunder or in connection with the negotiation of any
restructuring or "work-out" (whether or not consummated) of the
obligations of the Company hereunder. In addition, the Company
agrees to pay, and to save the Agent and the Lenders harmless
from all liability for, any stamp, transfer or other similar
taxes which may be payable in connection with the execution and
delivery of this Agreement, the borrowings hereunder, the
issuance of the Notes or the execution and delivery of any other
document provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided
for in this Section 14.6 shall survive repayment of the Loans,
cancellation of the Notes and any termination of this Agreement.
14.7 Indemnification by the Company. In consideration of
------------------------------
the execution and delivery of this Agreement by the Agent and the
Lenders and the agreement to extend the Commitments provided
hereunder, the Company hereby agrees to indemnify, exonerate and
hold the Agent, each Lender and each of the officers, directors,
employees and agents of the Agent and each Lender (collectively
the "Lender Parties" and individually each a "Lender Party") free
and harmless from and against any and all actions, causes of
action, suits, losses, liabilities, damages and expenses,
including, without limitation, reasonable attorneys' fees and
charges and allocated costs of staff counsel (collectively called
the "Indemnified Liabilities"), incurred by the Lender Parties or
any of them as a result of, or arising out of, or relating to,
(i) any tender offer, merger, purchase of stock, purchase of
assets or other similar transaction financed or proposed to be
financed in whole or in part, directly or indirectly, with the
proceeds of any of the Loans, (ii) the use, handling, release,
discharge, transportation, storage, treatment or disposal of any
"hazardous waste" or "hazardous material" (each as defined in any
applicable Environmental Law) at any real property owned or
leased by the Company or any Subsidiary or used by the Company or
any Subsidiary in its business or operations or (iii) the
enforcement of this Agreement or any Note by any of the Lender
Parties, except for any such Indemnified Liabilities arising on
account of any such Lender Party's bad faith, gross negligence or
willful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company
hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. All obligations provided for
in this Section 14.7 shall survive repayment of the Loans,
cancellation of the Notes and any termination of this Agreement.
14.8 Successors and Assigns. This Agreement shall be
----------------------
binding upon the Company, the Lenders and the Agent and their
respective successors and assigns, and shall inure to the benefit
of the Company, the Lenders and the Agent and the successors and
assigns of the Lenders and the Agent. The Company may not assign
its rights or obligations hereunder without the prior written
consent of all Lenders.
14.9 Assignments; Participations.
---------------------------
14.9.1 Assignments. Any Lender may, with the prior
-----------
written consents of the Company and the Agent (which consents
shall not be unreasonably delayed or withheld), at any time
assign and delegate to one or more commercial banks or other
financial institutions (any Person to whom such an assignment and
delegation is to be made being herein called an "Assignee"), all
or any fraction of such Lender's Syndicated Loans and Commitment
(which assignment and delegation shall be of a constant, and not
a varying, percentage of all the assigning Lender's Syndicated
Loans) in a minimum aggregate amount equal to the lesser of (i)
the assigning Lender's remaining Commitment and (ii) $5,000,000;
provided, however, that (a) no assignment and delegation may be
made to any Person if, at the time of such assignment and
delegation, the Company would be obligated to pay any greater
amount under Section 7.6 or Section 8 to the Assignee than the
Company is then obligated to pay to the assigning Lender under
such Section; (b) no assignment and delegation may be made to any
Person if the assigning Lender would be assigning and delegating
its entire Commitment and, at the time of such assignment and
delegation, the assigning Lender would have any Competitive Bid
Loan outstanding; and (c) the Company and the Agent shall be
entitled to continue to deal solely and directly with such Lender
in connection with the interests so assigned and delegated to an
Assignee until the date when all of the following conditions
shall have been met:
(x) five Business Days (or such lesser period of
time as the Agent and the assigning Lender shall agree)
shall have passed after written notice of such assignment
and delegation, together with payment instructions,
addresses and related information with respect to such
Assignee, shall have been given to the Company and the Agent
by such assigning Lender and the Assignee,
(y) the assigning Lender and the Assignee shall
have executed and delivered to the Company and the Agent an
assignment agreement substantially in the form of Exhibit J
(an "Assignment Agreement"), together with any documents
required to be delivered thereunder, which Assignment
Agreement shall have been accepted by the Agent and the
Company, and
(z) the assigning Lender or the Assignee shall
have paid the Agent a processing fee of $2,500.
From and after the date on which the conditions described in
clause (c) above have been met, (x) such Assignee shall be deemed
automatically to have become a party hereto and, to the extent
that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement,
shall have the rights and obligations of a Lender hereunder, and
(y) the assigning Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it
pursuant to such Assignment Agreement, shall be released from its
obligations hereunder. Within five Business Days after
effectiveness of any assignment and delegation, the Company shall
execute and deliver to the Agent (for delivery to the Assignee
and the Assignor, as applicable) a new Syndicated Loan Note in
the principal amount of the Assignee's Commitment and, if the
assigning Lender has retained a Commitment hereunder, a
replacement Syndicated Loan Note in the principal amount of the
Commitment retained by the assigning Lender (such Syndicated Loan
Note to be in exchange for, but not in payment of, the
predecessor Syndicated Loan Note held by such assigning Lender).
Each such Syndicated Loan Note shall be dated the effective date
of such assignment. The assigning Lender shall mark the
predecessor Note "exchanged" and deliver it to the Company.
Accrued interest on that part of the predecessor Note being
assigned shall be paid as provided in the Assignment Agreement.
Accrued interest and fees on that part of the predecessor Note
not being assigned shall be paid to the assigning Lender.
Accrued interest and accrued fees shall be paid at the same time
or times provided in the predecessor Note and in this Agreement.
Any attempted assignment and delegation not made in accordance
with this Section 14.9.1 shall be null and void.
Notwithstanding the foregoing provisions of this Section
14.9.1 or any other provision of this Agreement, any Lender may
at any time assign all or any portion of its Syndicated Loans and
its Syndicated Loan Note to a Federal Reserve Bank (but no such
assignment shall release any Lender from any of its obligations
hereunder).
14.9.2 Participations. Any Lender may at any time
--------------
sell to one or more commercial banks or other Persons
participating interests in any Loan owing to such Lender, the
Note held by such Lender, the Commitment of such Lender or any
other interest of such Lender hereunder (any Person purchasing
any such participating interest being herein called a
"Participant"). In the event of a sale by a Lender of a
participating interest to a Participant, (x) such Lender shall
remain the holder of its Note for all purposes of this Agreement
and (y) the Company and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's
rights and obligations hereunder. No Participant shall have any
direct or indirect voting rights hereunder (except that a Lender
may grant a Participant rights with respect to any of the events
described in the penultimate sentence of Section 14.1). The
Company agrees that if amounts outstanding under this Agreement
and the Notes are due and payable (as a result of acceleration or
otherwise), each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing
under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as
a Lender under this Agreement or such Note; provided that such
right of setoff shall be subject to the obligation of each
Participant to share with the Lenders, and the Lenders agree to
share with each Participant, as provided in Section 7.5. The
Company also agrees that each Participant shall be entitled to
the benefits of Section 7.6 and Section 8 as if it were a Lender
(provided that no Participant shall receive any greater
compensation pursuant to such Sections than would have been paid
to the participating Lender if no participation had been sold).
14.10 Governing Law. THIS AGREEMENT AND EACH NOTE SHALL BE
-------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
All obligations of the Company and rights of the Agent and the
Lenders expressed herein or in the Notes shall be in addition to
and not in limitation of those provided by applicable law.
14.11 Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the different parties hereto on
separate counterparts and each such counterpart shall be deemed
to be an original, but all such counterparts shall together
constitute but one and the same Agreement. When counterparts
executed by all of the parties hereto shall have been lodged with
the Agent (or, in the case of any Lender as to which an executed
counterpart shall not have been so lodged, the Agent shall have
received confirmation from such Lender of execution of a
counterpart hereof by such Lender), this Agreement shall become
effective as of the date hereof, and at such time the Agent shall
notify the Company and each Lender.
14.12 Forum Selection and Consent to Jurisdiction. ANY
-------------------------------------------
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE, MAY BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. THE COMPANY HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
14.13 Maximum Interest Rate. It is the express intention
---------------------
of the Agent, each Lender and the Company that nothing contained
in this Agreement, any Note, or in any other loan document shall
require the Company, or any other person obligated under this
Agreement or any Note to pay any interest (before or after an
Event of Default, as scheduled, compounded, or otherwise accrued
or charged) hereunder or under any Note at a rate exceeding the
maximum permissible rate under applicable law. If the Company
should pay or the Agent or any Lender should collect or receive
any interest in excess of the rate specified in the preceding
sentence, such payment shall be deemed to be the property of the
Company in all regards, and shall be held by the Agent or the
Lender, as the case may be, for the benefit of the Company, and
shall be repaid to the Company with interest accrued thereon from
the date of receipt by the Agent or the Lender, as the case may
be, to the date of repayment to the Company, at the overnight
Federal Funds Rate as determined by the Agent.
14.14 Waiver of Jury Trial. THE COMPANY, THE AGENT AND
--------------------
EACH LENDER HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY RELATED
DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM OR RELATING TO
ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT, AND AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
14.15 Oregon Legal Notice. WITHOUT LIMITING THE VALIDITY
-------------------
OF THE CHOICE OF NEW YORK LAW PROVIDED HEREIN, UNDER OREGON LAW,
MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE LENDERS
AFTER THE EFFECTIVE DATE OF THE ACT SPECIFIED HEREIN CONCERNING
LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL,
FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED
BY THE LENDERS TO BE ENFORCEABLE. THE ACT SPECIFIED HEREIN MEANS
CHAPTER 967 OREGON LAWS 1989, THE EFFECTIVE DATE OF WHICH WAS
OCTOBER 3, 1989.
Delivered at Portland, Oregon, as of the day and year first above written.
FRED MEYER, INC.
By MICHAEL H. DON
-----------------------------------
Vice President and Corporate
Treasurer
3800 S.E. 22nd Avenue
P.O. Box 42121
Portland, Oregon 97242
Attention: Michael H. Don
Vice President and
Corporate Treasurer
Facsimile: 503-797-5299
THE BANK OF NOVA SCOTIA,
individually and as Agent
By ERRETT HUMMEL
-----------------------------------
Title Relationship Manager
--------------------------------
888 S.W. Fifth Ave., Suite 750
Portland, Oregon 97204
Attention: Errett Hummel
Relationship Manager
Facsimile: 503-222-5502
FIRST INTERSTATE BANK OF
OREGON, N.A.
By MARCIA J. JANNER
------------------------------------
Marcia J. Jannner, Vice President
1300 S.W. Fifth Avenue, T-19
Portland, Oregon 97201
Attention: Marcia J. Janner
Vice President
Facsimile: 503-225-3162
WEST ONE BANK, IDAHO
By JAMES C. AALBERG
-----------------------------------
James C. Aalberg, Vice President
P.O. Box 8247
Boise, Idaho 83733
Attention: Trudy Jackson
Assistant Vice President
Facsimile: 208-383-7563
CREDIT SUISSE
By DAVID WORTHINGTON
-----------------------------------
David Worthington
Title MSM
--------------------------------
By MARILOU PANELZUELA
-----------------------------------
Marilou Palenzuela
Title MSM
--------------------------------
633 W. Fifth St., 64th Floor
Los Angeles, California 90071
Attention: Rita Asa
Facsimile: 213-955-8245
BANQUE NATIONALE DE PARIS, by
and through its San Francisco,
California Agency
By KATHIE WOLFE
-----------------------------------
Title VP
--------------------------------
180 Montgomery Street
San Francisco, California 94104
Attention: Donald A. Hart
Treasurer
Facsimile: 415-989-9041
SCHEDULE I
COMMITMENTS AND PERCENTAGES
Lender Commitment Percentage
- ------ ---------- ----------
The Bank of Nova Scotia $ 35,000,000 35%
First Interstate Bank of Oregon, N.A. $ 20,000,000 20%
West One Bank, Idaho $ 15,000,000 15%
Credit Suisse $ 15,000,000 15%
Banque Nationale de Paris $ 15,000,000 15%
----------- ----
TOTAL $100,000,000 100%
SCHEDULE II
SCHEDULE OF SUBSIDIARIES
Percentage
Jurisdiction Owned By The
Of Company and
Subsidiary Organization Its Subsidiaries
- ---------- ------------ ----------------
B&B Stores, Inc. Montana 100%
B&B Pharmacy, Inc. Montana 100%
CB&S Advertising Agency, Inc. Oregon 100%
Distribution Trucking Company Oregon 100%
FM Holding Corporation Delaware 100%
Grand Central, Inc. Utah 100%
FM Retail Services, Inc. Washington 100%
Fred Meyer (HK) Limited Hong Kong 100%
Fred Meyer, Inc.
(a Washington corporation) Washington 100%
Fred Meyer of Alaska, Inc. Alaska 100%
Fred Meyer of California, Inc. California 100%
Natur Glo, Inc. Oregon 100%
Roundup Co. Washington 100%
EXHIBIT A
FORM OF
COMPETITIVE BID QUOTE REQUEST
_____________________, 19____
The Bank of Nova Scotia
888 S.W. Fifth Avenue, Suite 750
Portland, Oregon 97204
Attention: Jay Daughenbaugh
Facsimile: (503) 222-5502
Telephone: (503) 222-4396
This instrument constitutes a Competitive Bid Quote Request under,
and as defined by, the Credit Agreement dated as of March 6, 1995 (as
amended or modified and in effect from time to time, the "Credit
Agreement") among the undersigned Fred Meyer, Inc., a Delaware
corporation (the "Company"), the Lenders which are parties thereto, and
The Bank of Nova Scotia, as Agent. Terms not otherwise expressly
defined herein shall have the meanings set forth in the Credit Agreement.
The Company hereby requests Competitive Bid Loan(s), subject to the
terms of the Credit Agreement, as follows:
(a) Date of borrowing (the "Borrowing Date") (which is a Business
Day): _________________, 19___.<F1> Quotation Date for Set Rate
Loans if before the Borrowing Date: ________________, 19___.
(b) Aggregate principal amount of Competitive Bid Loans requested:
$_____________ ("Maximum Request").<F2>
(c) Number of Competitive Bid Loans requested and principal
amounts thereof: _________________ Competitive Bid Loan(s)
in the amount of $________________, $_______________ and
$________________, respectively.
___________________
<F1> At least one (1) Business Day after the delivery of this
Competitive Bid Quote Request in the case of a Set Rate Auction
and at least four (4) Business Days after delivery of this
Competitive Bid Quote Request in the case of a Eurodollar Auction.
<F2> Subject to the terms of the Credit Agreement, a minimum of
$5,000,000 and, for amounts in excess thereof, an integral multiple
of$1,000,000.
(d) Interest Period(s) and its/their maturity date(s):
Principal Amount<F3> Maturity Date<F4> Type of Loan<F5>
---------------- ------------- ------------
$
$
$
The Company hereby represents and warrants that immediately
following the making of the Competitive Bid Loan(s) requested above:
(1) the aggregate principal amount of all outstanding
Syndicated Loans will be $________________;
(2) the aggregate principal amount of all outstanding
Competitive Bid Loans will be $______________; and
(3) the sum of items (1) and (2) above will be $____________,
which is equal to or less than the Commitment Amount of
$_______________.
The Company further certifies and warrants that at the time hereof
the applicable conditions precedent under Section 11 have been satisfied.
The Company agrees that if prior to the time of the Competitive Bid
Loan related hereto, any matter certified to, confirmed, represented or
warranted herein by it will not be true and correct at such time as if
then made, it will immediately so notify the Agent.
IN WITNESS WHEREOF, the Company has caused this Competitive Bid
Quote Request to be executed and delivered by its duly authorized
officer this _____ day of _______________, 19____.
FRED MEYER, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
___________________
<F3> Subject to the terms of the Credit Agreement, a minimum of
$5,000,000 and, for amounts in excess thereof, an integral
multiple of $1,000,000.
<F4> For each Interest Period for a Set Rate Loan, no earlier than
seven (7) days after the Borrowing Date requested herein, and
no later than the earlier of (a) ninety (90) days after such
Borrowing Date, and (b) the Termination Date. For each Interest
Period for a Eurodollar Competitive Bid Loan, subject to the
terms of the Credit Agreement, a period commencing on the
Borrowing Date requested herein and ending on, but excluding,
the numerically corresponding day in the first, second,
or third calendar thereafter; provided that the Interest Period
shall in no event extend beyond the Termination Date.
<F5> Set Rate Loan (SRL) or Eurodollar Competitive Bid Loan (ECL).
EXHIBIT B
FORM OF
INVITATION FOR COMPETITIVE BID QUOTES
_____________________, 19____
To: [Name of Lender]
Re: Invitation for Competitive Bid Quotes to
Fred Meyer, Inc. (the "Company")
Pursuant to Section 2.2.3 of the Credit Agreement dated as of
March 6, 1995 (as amended or modified and in effect from time to time,
the "Credit Agreement") among the Company, the Lenders which are parties
thereto, and the undersigned, as Agent, we are pleased on behalf of the
Company to invite you to submit Competitive Bid Quotes to the Company
for the following proposed Competitive Bid Loans:
Date of Borrowing: ________________________________, 19____
Eurodollar
Competitive Bid Rate
Principal Amount Interest Period Type of Loan<F1> (Reserve Adjusted)<F2>
- ---------------- --------------- ---------------- ----------------------
1.
2.
3.
Your Competitive Bid Quote must comply with Section 2.2.3 of the
Credit Agreement and the foregoing terms in which the Competitive Bid
Quote Request was made. Terms not otherwise expressly defined herein
shall have the meaning set forth in the Credit Agreement.
Please respond to this invitation by no later than [10:00 a.m.<F3>/
2:00 p.m.<F4>] Portland time on __________________________, 19_____.
THE BANK OF NOVA SCOTIA, as Agent
By:_________________________________________
Authorized Officer
___________________
<F1> Set Rate Loan (SRL) or Eurodollar Competitive Bid Rate Loan (ECL).
<F2> Applicable to Eurodollar Competitive Bid Loans.
<F3> Set Rate Loan.
<F4> Eurodollar Competitive Bid Loan.
EXHIBIT C
FORM OF
COMPETITIVE BID QUOTE
COMPETITIVE BID QUOTE
FROM
_________________________<F1>
(Contact Person: _________________________)
(Telephone No.: ___________________)
The Bank of Nova Scotia
888 S.W. Fifth Avenue, Suite 750
Portland, Oregon 97205
Attention: Jay Daughenbaugh
Facsimile: (503) 222-5502
Telephone: (503) 222-4396
This instrument constitutes an irrevocable Competitive Bid Quote
for one or more Competitive Bid Loans under, and as defined by, the
Credit Agreement dated as of March 6, 1995 (as amended or modified and
in effect from time to time, the "Credit Agreement") among Fred Meyer,
Inc. a Delaware corporation (the "Company"), the various financial
institutions (including the undersigned (the "Lender")) which are
parties thereto, and The Bank of Nova Scotia, as Agent. Terms not
otherwise expressly defined herein shall have the meanings set forth in
the Credit Agreement.
(1) The Company's related Competitive Bid Quote Request inviting
this Competitive Bid Quote has requested Competitive Bid Loan(s),
subject to the terms of the Credit Agreement, in the aggregate principal
amount of $_______________ ("Maximum Request") with a date of borrowing
of ______________________, 19____ (the "Borrowing Date").
(2) The Lender hereby offers to make the following Competitive Bid
Loan(s) on the Borrowing Date provided that the Company may accept bids
for such Loans up to $_____________ in the aggregate ("Maximum Offer"):
___________________
<F1> Name of Lender Submitting Bid.
Principal Amount<F2> Maturity Date Type Set Eurodollar
- -------------------- of Interest of Rate<F4> Competitive Bid
Period Loan<F3> -------- Rate (Reserve
------------- -------- Adjusted) +/-
Eurodollar Margin<F4>
---------------------
$
$
$
(3) The Lender acknowledges that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in
the Credit Agreement, irrevocably obligate(s) the Lender to make the
Competitive Bid Loan(s) for which any offer(s) are accepted by the
Company, in whole or in part, in accordance with the terms of the Credit
Agreement.
Dated: ______________________ _____________________________________<F5>
By: _________________________________
Name: _______________________________
Title: ______________________________
___________________
<F2> A minimum of $5,000,000, and, for amounts in excess thereof,
an integral multiple of $1,000,000 for each Competitive Bid Loan.
<F3> Set Rate Loan (SRL) or Eurodollar Competitive Bid Rate Loan (ECL).
<F4> Insert the rate of interest per annum (expressed to the nearest
1/10,000 of 1%).
<F5> Name of Lender submitting Competitive Bid Quote.
EXHIBIT D
FORM OF
COMPETITIVE BID LOAN
ACKNOWLEDGMENT
The Bank of Nova Scotia
888 S.W. Fifth Avenue, Suite 750
Portland, Oregon 97205
Attention: Jay Daughenbaugh
This instrument constitutes a Competitive Loan Acknowledgment
under, and as defined by, the Credit Agreement dated as of March 6, 1995
(as amended or modified and in effect from time to time, the "Credit
Agreement") among Fred Meyer, Inc., a Delaware corporation (the
"Company"), the Lenders which are parties thereto, and The Bank of Nova
Scotia, as Agent. Terms not otherwise expressly defined herein shall
have the meanings set forth in the Credit Agreement.
Pursuant to Section 2.2.3(e) of the Credit Agreement, the Company
hereby confirms its [acceptance of the Competitive Bid Quote]
[acceptance of a portion of the Competitive Bid Quote ("Portion")] dated
________________, 19____, for the Competitive Bid Loan(s) to take place
on ______________________, 19___, on the following terms:
A. Competitive Bid Loan.
--------------------
1. Principal Amount of
Competitive Bid Loan $____________________
2. Type of Competitive Bid Loan ____________________
3. Competitive Bid Loan
maturity date ____________, 19____
4. Amount of, and (a) Set Rate or
(b) Eurodollar Competitive Bid
Rate (Reserve Adjusted) +/-
Eurodollar Margin for, each Portion
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
B. Competitive Bid Loan.
--------------------
1. Principal Amount of
Competitive Bid Amount $___________________
2. Type of Competitive Bid Loan ___________________
3. Competitive Bid Loan
maturity date ___________, 19____
4. Amount of, and (a) Set Rate or
(b) Eurodollar Competitive Bid
Rate (Reserve Adjusted) +/-
Eurodollar Margin for, each Portion
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
C. Competitive Bid Loan.<F1>
--------------------
1. Principal Amount of
Competitive Bid Loan $___________________
2. Type of Competitive Bid Loan ___________________
3. Competitive Bid Loan
maturity date ___________, 19____
4. Amount of, and (a) Set Rate or
(b) Eurodollar Competitive Bid Rate
(Reserve Adjusted) +/- Eurodollar
Margin for, each Portion
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
The Company hereby confirms to each Lender that the above-described
Competitive Bid Quote, or Portion(s) thereof, were accepted or rejected
in accordance with Section 2.2.3 of the Credit Agreement.
The Company hereby further certifies and warrants that at the time
hereof the applicable conditions precedent under Section 11 have been
satisfied.
The undersigned hereby confirms that the proposed Competitive Loan
is to be made available to it in accordance with Section 2.2.4 of the
Credit Agreement.
The Company hereby represents and warrants that immediately
following the making of the Competitive Bid Loan(s):
(1) the aggregate principal amount of all outstanding
Syndicated Loans will be $________________;
(2) the aggregate principal amount of all outstanding
Competitive Bid Loans will be $______________; and
(3) the sum of items (1) and (2) above will be
$_______________, which is equal to or less than the Commitment
Amount of $____________.
__________________
<F1> Repeat as necessary.
Except to the extent, if any, that prior to the time of the
Competitive Bid Loan related hereto the Agent has received written
notice to the contrary from the Company, each matter certified to in the
Competitive Bid Quote Request related hereto shall be deemed once again
to be certified as true and correct at the date of such Borrowing as if
then made.
The Company has caused this Competitive Bid Loan Acknowledgment to
be executed and delivered, and the certification and warranties
contained herein to be made, by its authorized officer this _____ day of
__________________________, 19____.
FRED MEYER, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
EXHIBIT E
FORM OF
COMPETITIVE BID LOAN
CONFIRMATION
______________________, 19____
To all Lenders Submitting Competitive Bid
Quotes Under the Credit Agreement.
This instrument constitutes a Competitive Loan Confirmation under,
and as defined by, the Credit Agreement dated as of March 6, 1995 (as
amended or modified and in effect from time to time, the "Credit
Agreement") among Fred Meyer, Inc., a Delaware corporation (the
"Company"), the Lenders which are parties thereto, and The Bank of Nova
Scotia, as Agent. Terms not otherwise expressly defined herein shall
have the meanings set forth in the Credit Agreement.
The Company delivered to the Lender a Competitive Bid Quote Request
on _________________, 19____, and the following Bid(s) were accepted on
_________________, 19___ (the "Competitive Bid Loan Acceptance Date") on
the following terms:
A. Competitive Bid Loan.
--------------------
1. Principal Amount of
Competitive Bid Loan $____________________
2. Type of Competitive Bid Loan ____________________
3. Competitive Bid Loan
maturity date ____________, 19____
4. Amount of, and (a) Set Rate or
(b) Eurodollar Competitive Bid
Rate (Reserve Adjusted) +/-
Eurodollar Margin for, each Portion
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
B. Competitive Bid Loan.
--------------------
1. Principal Amount of
Competitive Bid Amount $___________________
2. Type of Competitive Bid Loan ___________________
3. Competitive Bid Loan
maturity date ___________, 19____
4. Amount of, and (a) Set Rate or
(b) Eurodollar Competitive Bid
Rate (Reserve Adjusted) +/-
Eurodollar Margin for, each Portion
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
C. Competitive Bid Loan.<F1>
--------------------
1. Principal Amount of
Competitive Bid Loan $___________________
2. Type of Competitive Bid Loan ___________________
3. Competitive Bid Loan
maturity date ___________, 19____
4. Amount of, and (a) Set Rate or
(b) Eurodollar Competitive Bid Rate
(Reserve Adjusted) +/- Eurodollar
Margin for, each Portion
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
[Bidding Lender] $__________ at _____%
D. The aggregate outstanding balance of all Competitive Bid Loans
is $____________________.<F2>
THE BANK OF NOVA SCOTIA, as Agent
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
___________________
<F1> Repeat as necessary.
<F2> After giving effect to the Competitive Bid Loan(s) being confirmed.
EXHIBIT F
FORM OF REQUEST FOR EXTENSION OF
TERMINATION DATE
[Date]
[Name and Address of Lender]
Pursuant to the Credit Agreement dated as of March 6, 1995 (as
amended or otherwise modified, the "Credit Agreement") among Fred Meyer,
Inc. (the "Company"), various financial institutions and The Bank of
Nova Scotia, by and through its Portland, Oregon Branch, as Agent, this
represents the Company's request to extend the Termination Date (as
defined in the Credit Agreement) by 364 days.
Please indicate whether you consent to such extension of the
Termination Date by signing the attached copy of this Extension Request
in the space provided below and returning the same to the undersigned
within 30 days of the date of this request.
Very truly yours,
FRED MEYER, INC.
By: ______________________________________
Title: ___________________________________
[Name of Lender]
Date: ____________________
ACCEPTS _______
REJECTS _______
By: _______________________________
Title:_____________________________
EXHIBIT G
FORM OF
SYNDICATED LOAN NOTE
$_______________________ _________________, 199___
Portland, Oregon
FOR VALUE RECEIVED, FRED MEYER, INC., a Delaware corporation (the
"Company") promises to pay to the order of ___________________________
at the principal office of THE BANK OF NOVA SCOTIA (the "Agent") in
Portland, Oregon, on the date(s) set forth in the Credit Agreement
referred to below, ___________________ Dollars ($______________) or, if
less, the aggregate unpaid amount of all Syndicated Loans made by the
payee to the Company pursuant to the Credit Agreement (as shown in the
records of the payee or, at the payee's option, on the schedule attached
hereto).
The Company further promises to pay interest on the unpaid
principal amount of each Loan evidenced hereby from the date of such
Loan until such Loan is paid in full, payable at the rate(s) and at the
time(s) set forth in the Credit Agreement. Payments of both principal
and interest are to be made in lawful money of the United States of
America.
This Note evidences indebtedness incurred under, and is subject to
the terms and provisions of, the Credit Agreement, dated as of March 6,
1995 (herein, as amended or otherwise modified from time to time, called
the "Credit Agreement"), among the Company, certain financial
institutions (including the payee) and the Agent, to which Credit
Agreement reference is hereby made for a statement of the terms and
provisions under which this Note may or must be paid prior to its due
date or may have its due date accelerated.
In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the Company further agrees, subject
only to any limitation imposed by applicable law, to pay all reasonable
expenses, including reasonable attorneys' fees and legal expenses,
incurred by the holder of this Note in endeavoring to collect any
amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise, and whether or not litigation is actually
commenced. In the event the holder of this Note is made a party to any
litigation because of the existence of the indebtedness evidenced by
this Note, the Company shall reimburse the holder for its costs and
reasonable attorneys' fees incurred with respect to such litigation. In
the event litigation is commenced by a party hereto to enforce or
interpret any provision of this Note, or to collect any amount due
hereunder, the prevailing party in such litigation shall be entitled to
receive, in addition to all other sums and relief, its reasonable costs
and attorneys' fees, incurred both at and in preparation for trial and
any appeal or review, such amount to be set by the court(s) before which
the matter is heard. The Company also agrees to pay any attorneys' fee
incurred by the holder of this Note in connection with any bankruptcy or
similar proceedings wherein the Company is the debtor. Except as set
forth in the Credit Agreement, each of the Company and each guarantor
hereof waives demand, presentment, protest, diligence, notice of
dishonor and any other formality in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF.
FRED MEYER, INC.
By _______________________________________
Vice President and Corporate Treasurer
Schedule attached to Note dated _____________________, 199____, of
FRED MEYER, INC. ________________ payable to the order of ______________
__________________________.
Date and Date and
Amount of Amount of
Loan or of Repayment or of
Conversion from Conversion into Unpaid
Another Type of Another Type of Interest Principal Notation
Loan Loan Period Balance Made by
1. ALTERNATE BASE RATE LOANS
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. EURODOLLAR LOANS
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
EXHIBIT H
FORM OF
COMPETITIVE BID LOAN NOTE
$100,000,000 _________________, 199___
Portland, Oregon
FOR VALUE RECEIVED, FRED MEYER, INC., a Delaware corporation (the
"Company"), promises to pay to the order of ___________________________
at the principal office of THE BANK OF NOVA SCOTIA (the "Agent") in
Portland, Oregon, on the date(s) set forth in the Credit Agreement
referred to below, One Hundred Million and No/100 Dollars ($100,000,000)
or, if less, the aggregate unpaid amount of all Competitive Bid Loans
made by the payee to the Company pursuant to the Credit Agreement (as
shown in the records of the payee or, at the payee's option, on the
schedule attached hereto).
The Company further promises to pay interest on the unpaid
principal amount of each Loan evidenced hereby from the date of such
Loan until such Loan is paid in full, payable at the rate(s) and at the
time(s) set forth in the Credit Agreement. Payments of both principal
and interest are to be made in lawful money of the United States of
America.
This Note evidences indebtedness incurred under, and is subject to
the terms and provisions of, the Credit Agreement, dated as of March 6,
1995 (herein, as amended or otherwise modified from time to time, called
the "Credit Agreement"), among the Company, certain financial
institutions (including the payee) and the Agent, to which Credit
Agreement reference is hereby made for a statement of the terms and
provisions under which this Note may or must be paid prior to its due
date or may have its due date accelerated.
In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the Company further agrees, subject
only to any limitation imposed by applicable law, to pay all reasonable
expenses, including reasonable attorneys' fees and legal expenses,
incurred by the holder of this Note in endeavoring to collect any
amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise, and whether or not litigation is actually
commenced. In the event the holder of this Note is made a party to any
litigation because of the existence of the indebtedness evidenced by
this Note, the Company shall reimburse the holder for its costs and
reasonable attorneys' fees incurred with respect to such litigation. In
the event litigation is commenced by a party hereto to enforce or
interpret any provision of this Note, or to collect any amount due
hereunder, the prevailing party in such litigation shall be entitled to
receive, in addition to all other sums and relief, its reasonable costs
and attorneys' fees, incurred both at and in preparation for trial and
any appeal or review, such amount to be set by the court(s) before which
the matter is heard. The Company also agrees to pay any attorneys' fee
incurred by the holder of this Note in connection with any bankruptcy or
similar proceedings wherein the Company is the debtor. Except as set
forth in the Credit Agreement, each of the Company and each guarantor
hereof waives demand, presentment, protest, diligence, notice of
dishonor and any other formality in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF.
FRED MEYER, INC.
By _______________________________________
Vice President and Corporate Treasurer
Schedule attached to Note dated _____________________, 199____, of FRED
MEYER, INC. $100,000,000 payable to the order of ______________________
__________________.
Date and Date and Unpaid
Amount of Amount of Principal Notation
Loan Repayment Balance Made by
1. SET RATE LOANS
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
2. EURODOLLAR COMPETITIVE BID LOANS
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
EXHIBIT I
FORM OF
OPINION OF COUNSEL
[Letterhead of Stoel Rives Boley Jones & Grey]
March ____, 1995
The Bank of Nova Scotia, by and
through its Portland, Oregon Branch,
individually and as Agent, and
the other Lenders which are
parties to the Credit Agreement
referred to below
888 S.W. Fifth Avenue, Suite
750 Portland, Oregon 97204
Re: Credit Agreement dated as of March 6, 1995 among
Fred Meyer, Inc., various financial institutions
and The Bank of Nova Scotia, as Agent
------------------------------------------------
Gentlemen:
We have acted as counsel to Fred Meyer, Inc., a Delaware
corporation (the "Company"), in connection with the Credit Agreement
dated as of March 6, 1995 among the Company, various financial
institutions (the "Lenders") and The Bank of Nova Scotia, by and through
its Portland, Oregon Branch, as Agent (the "Credit Agreement"). This
opinion letter is rendered to you pursuant to Section 11.1.5 of the
Credit Agreement. Unless otherwise defined herein, capitalized terms
used herein shall have the respective meanings set forth in the Credit
Agreement.
For the purpose of rendering our opinions herein, we have examined
(i) the Credit Agreement and the Notes, (ii) certificates of public
officials and of officers of the Company, (iii) certified copies of the
Company's Restated Certificate of Incorporation and Amended and Restated
Bylaws, (iv) resolutions of the Company's Board of Directors authorizing
the Company's participation in the transactions contemplated by the
Credit Agreement, and (v) the agreements referred to as "material
agreements" in the attached Officer's Certificate of the Company (the
"Certificate"). We have also examined such other documents and records,
and have made such investigations of law, as we have deemed necessary to
enable us to render this opinion. As to the accuracy of certain factual
matters, we have relied on certificates and written statements of
officers of the Company and factual representations made by the Company
within the Credit Agreement.
For purposes of this opinion, "actual knowledge" means the
conscious awareness of facts or other information by Gary R. Barnum or
Katherine Fritchman, the persons at this firm principally involved with
the transactions contemplated by the Credit Agreement.
Based on the foregoing and subject to the qualifications below, we
are of the opinion that:
(1) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power
and authority to own and operate its properties, to
carry on its business as described in the Company's
Annual Report on Form 10-K for the fiscal year ended
January 29, 1994, to enter into the Credit Agreement,
to issue the Notes and to carry out the transactions
contemplated thereby.
(2) The Credit Agreement and the Notes have been duly
authorized by all necessary corporate action on the
part of the Company, and the Credit Agreement and the
Notes have been duly executed and delivered by the
Company and constitute legal, valid and binding
obligations of the Company, enforceable against the
Company in accordance with their respective terms.
(3) None of the execution and delivery by the Company of
the Credit Agreement and the Notes, the consummation by
the Company of the transactions contemplated by the
Credit Agreement or compliance by the Company with the
terms and conditions of the Credit Agreement and the
Notes (a) conflicts with, results in a breach of, or
constitutes a default under any of the terms,
conditions or provisions of the Restated Certificate of
Incorporation or Amended and Restated Bylaws of the
Company or, to our actual knowledge, any "material
agreement" referred to in the Certificate or judicial
order by which the Company or any Subsidiary is bound,
or (b) to our actual knowledge, results in the creation
of any Lien upon any of the properties or assets of the
Company or any Subsidiary under any such agreement or
order.
(4) Neither the execution and delivery of the Credit
Agreement and the Notes nor the payment of the Notes
conflicts with any present federal statute binding on
the Company or any Delaware statute, rule or regulation
contained in or promulgated under the General
Corporation Law of the State of Delaware binding on the
Company.
(5) To our actual knowledge, no governmental consents,
approvals, authorizations, registrations, declarations
or filings are required by the Company in connection
with the extensions of credit under the Credit
Agreement.
(6) The Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as
amended.
The opinions set forth above are subject to (a) the effect
of bankruptcy, insolvency, reorganization, moratorium, and other
similar laws generally affecting creditors, rights and (b) the
application of general principles of equity, including, without
limitations, the right to specific performance. A court might
not enforce certain covenants or allow acceleration of the due
date of the Notes if it concludes that such enforcement or
acceleration would be unreasonable or not undertaken in good
faith under the then existing circumstances, but the inclusion of
such remedies does not, in our opinion, affect the validity of
the Credit Agreement or the Notes. In addition, no opinion is
expressed herein as to Section 14.7 of the Credit Agreement.
We express no opinion as to (a) the enforceability under
certain circumstances of any provision imposing penalties, late
payment charges or increases in interest rate upon delinquency in
payment or the occurrence of Events of Default, (b) the
enforceability of any choice of law provision, (c) the compliance
with certain financial covenants under the "material agreements"
set forth in the Certificate, or (d) the compliance with
applicable anti-fraud provisions of federal or state securities
laws.
The opinions herein expressed are limited to matters
governed by the laws of the United States of America and the
State of Oregon and, as to the opinions expressed in paragraphs
(1), (2), and (4) above, the General Corporation Law of the State
of Delaware, in each case as it exists at the date hereof, and we
express no opinion as to the law of any other jurisdiction. In
rendering the opinions set forth in paragraph (2) above, we have
assumed, as to matters purported to be governed by the laws of
the State of New York, that the laws of the State of Oregon and
the State of New York do not differ in any material respect.
This opinion is rendered only to the Agent and the Lenders
and is solely for their benefit in connection with the above
transactions. This opinion may not be relied upon by the Agent
or any Lender for any other purpose or quoted to or relied upon
by any other person, firm or corporation for any purpose without
our prior written consent.
Very truly yours,
STOEL RIVES BOLEY JONES & GREY
By _________________________________________
Gary R. Barnum
EXHIBIT J
FORM OF
ASSIGNMENT AGREEMENT
Date:___________________
To: Fred Meyer, Inc.
and
The Bank of Nova Scotia, as Agent
Re: Assignment under the Credit Agreement referred to below
-------------------------------------------------------
Gentlemen and Ladies:
We refer to Section 14.9.1 of the Credit Agreement dated as
of March 6, 1995 (as amended or otherwise modified, the "Credit
Agreement") among Fred Meyer, Inc. (the "Company"), various
financial institutions and The Bank of Nova Scotia, by and
through its Portland, Oregon Branch, as agent (the "Agent").
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
____________________ (the "Assignor") hereby sells and
assigns to ______________ (the "Assignee"), and the Assignee
hereby purchases and assumes from the Assignor, that interest in
and to the Assignor's rights and obligations under the Credit
Agreement as of the date hereof equal to _______% of all of the
Syndicated Loans and Commitments, such sale, purchase, assignment
and assumption to be effective as of ___________________, 199_,
or such later date on which the Company and the Agent shall have
consented hereto (the "Effective Date"). After giving effect to
such sale, purchase, assignment and assumption, the Assignee's
Percentage for purposes of the Credit Agreement will be as set
forth opposite the Assignee's name on the signature pages hereof.
The Assignor hereby instructs the Agent to make all payments
from and after the Effective Date in respect of the interest
assigned hereby directly to the Assignee. The Assignor and the
Assignee agree that all interest and fees accrued up to, but not
including, the Effective Date are the property of the Assignor,
and not the Assignee. The Assignee agrees that, upon receipt of
any such interest or fees, the Assignee will promptly remit the
same to the Assignor.
The Assignee hereby confirms that it has received a copy of
the Credit Agreement and the exhibits and schedules related
thereto, together with copies of the documents which were
required to be delivered under the Credit Agreement as a
condition to the making of the initial Loans thereunder. The
Assignee acknowledges and agrees that it (i) has made and will
continue to make such inquiries and has taken and will take such
care on its own behalf as would have been the case had its
Commitment been granted and its Syndicated Loans been made
directly by the Assignee to the Company without the intervention
of the Agent, the Assignor or any other Lender and (ii) has made
and will continue to make, independently and without reliance
upon the Agent, the Assignor or any other Lender and based on
such documents and information as it has deemed appropriate, its
own credit analysis and decisions relating to the Credit
Agreement. The Assignee further acknowledges and agrees that
neither the Agent nor the Assignor has made any representation or
warranty about the creditworthiness of the Company or any other
party to the Credit Agreement or with respect to the legality,
validity, sufficiency or enforceability of the Credit Agreement
or any Note or the value of any security therefor. This
assignment shall be made without recourse to the Assignor.
The Assignor represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim.
The Assignee represents and warrants to the Company and the
Agent that, as of the date hereof, the Company will not be
obligated to pay any greater amount under Section 7.6 or 8.1 of
the Credit Agreement than the Company is obligated to pay to the
Assignor under such Section.
Except as otherwise provided in the Credit Agreement,
effective as of the Effective Date:
(a) the Assignee (i) shall be deemed automatically to have
become a party to the Credit Agreement and have all the
rights and obligations of a "Lender" under the Credit
Agreement as if it were an original signatory thereto
to the extent specified in the second paragraph hereof;
and (ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement as if it were an
original signatory thereto; and
(b) the Assignor shall be released from its obligations
under the Credit Agreement to the extent specified in
the second paragraph hereof.
The Assignor and the Assignee hereby agree that the
[Assignor] [Assignee] will pay to the Agent the processing fee
referred to in Section 14.9.1 of the Credit Agreement. The
payment of the processing fee shall be a condition to the
effectiveness of this assignment.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and
Commitment:
(A) Address for Notices:
Institution Name:
Address:
Attention:
Telephone:
Facsimile:
(B) Payment Instructions:
The Assignee has delivered to the Company and the Agent (or
is delivering to the Company and the Agent concurrently herewith)
the tax forms referred to in Section 7.6 of the Credit Agreement.
Please evidence your receipt hereof and consent to the sale,
assignment, purchase and assumption set forth herein by signing
and returning counterparts hereof to the Assignor and the
Assignee.
Percentage = ____% [ASSIGNEE]
By:____________________________________
Title:
[ASSIGNOR]
By:____________________________________
Title:
ACKNOWLEDGED AND CONSENTED TO
this _____ day of ____________, 199_
THE BANK OF NOVA SCOTIA, as Agent
By:____________________________________
Title:_________________________________
ACKNOWLEDGED AND CONSENTED TO
this _____ day of ____________, 199_
FRED MEYER, INC.
By:____________________________________
Title:_________________________________