EXHIBIT 4F
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of October 30, 1995
among
FRED MEYER, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
and
THE BANK OF NOVA SCOTIA
as Co-Agent;
Arranged by
BA SECURITIES, INC.
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TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS AND INTERPRETATION.................................. 1
1.1 Definitions............................................... 1
1.2 Computations; Changes in GAAP............................. 11
1.3 Cross-References; Section Captions........................ 11
SECTION 2 COMMITMENTS OF THE LENDERS; TYPES OF LOANS;
BORROWING AND CONVERSION PROCEDURES............................. 11
2.1 Commitments............................................... 11
2.2 Various Types of Loans.................................... 12
2.3 Borrowing Procedures...................................... 12
2.4 Continuation and Conversion Procedures.................... 13
2.5 Conditions................................................ 13
2.6 Pro Rata Treatment........................................ 13
2.7 Commitments Several....................................... 13
2.8 Extension of Termination Date............................. 13
SECTION 3 NOTES EVIDENCING LOANS.......................................... 14
3.1 Notes..................................................... 14
3.2 Recordkeeping............................................. 14
SECTION 4 INTEREST........................................................ 15
4.1 Interest Rates............................................ 15
4.2 Interest Payment Dates.................................... 15
4.3 Setting and Notice of Eurodollar Rates.................... 15
4.4 Computation of Interest................................... 16
SECTION 5 FEES............................................................ 16
5.1 Facility Fee.............................................. 16
5.2 Agent's Fee............................................... 16
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS; REPAYMENT.......................................... 16
6.1 Reduction or Termination of the
Commitments............................................... 16
6.2 Prepayments............................................... 16
6.3 Repayment................................................. 17
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES................. 17
7.1 Making of Payments........................................ 17
7.2 Application of Certain Payments........................... 17
7.3 Due Date Extension........................................ 17
7.4 Setoff.................................................... 18
7.5 Proration of Payments..................................... 18
7.6 Taxes..................................................... 18
7.7 Funding Reliance.......................................... 19
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SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
EURODOLLAR LOANS................................................ 20
8.1 Increased Costs........................................... 20
8.2 Basis for Determining Interest Rate
Inadequate or Unfair...................................... 22
8.3 Changes in Law Rendering Eurodollar Loans
Unlawful.................................................. 22
8.4 Funding Losses............................................ 23
8.5 Right of Lenders to Fund through Other
Offices................................................... 23
8.6 Discretion of Lenders as to Manner of
Funding................................................... 23
8.7 Mitigation of Circumstances; Replacement
of Affected Lender or Objecting Lender.................... 23
8.8 Conclusiveness of Statements; Survival of
Provisions................................................ 24
SECTION 9 WARRANTIES...................................................... 24
9.1 Organization, etc......................................... 25
9.2 Authorization; No Conflict................................ 25
9.3 Validity and Binding Nature............................... 25
9.4 Financial Information..................................... 25
9.5 No Material Adverse Change................................ 25
9.6 Litigation and Contingent Liabilities..................... 25
9.7 Ownership of Properties; Liens............................ 26
9.8 Subsidiaries.............................................. 26
9.9 Pension Plans............................................. 26
9.10 Regulated Industry........................................ 27
9.11 Regulations G, U and X.................................... 27
9.12 Taxes..................................................... 27
9.13 Environmental and Safety and Health
Matters................................................... 27
9.14 Compliance with Law....................................... 27
9.15 Information............................................... 28
SECTION 10 COVENANTS....................................................... 28
10.1 Reports, Certificates and Other
Information............................................... 28
10.1.1 Audit Report...................................... 28
10.1.2 Interim Reports................................... 28
10.1.3 Compliance Certificate............................ 29
10.1.4 Reports to SEC.................................... 29
10.1.5 Notice of Default, Litigation
and ERISA Matters................................. 29
10.1.6 Subsidiaries...................................... 29
10.1.7 Other Information................................. 30
10.2 Books, Records and Inspections.............................. 30
10.3 Insurance................................................... 30
10.4 Compliance with Law; Payment of Taxes
and Liabilities........................................... 30
10.5 Maintenance of Existence, etc............................... 30
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10.6 Financial Ratios and Restrictions........................... 30
10.6.1 Minimum Consolidated Tangible
Net Worth......................................... 30
10.6.2 Long-Term Liabilities to Net
Worth Ratio....................................... 31
10.6.3 Fixed Charge Coverage Ratio....................... 31
10.7 Limitation on Liens......................................... 31
10.8 Debt........................................................ 33
10.9 Guaranties, Loans and Advances.............................. 33
10.10 Mergers, Consolidations, Sales............................. 34
10.11 Company's and Subsidiaries' Stock.......................... 34
10.12 Unconditional Purchase Obligations......................... 35
10.13 ERISA...................................................... 35
10.14 Purchase or Redemption of Company's
Securities; Dividend Restriction......................... 35
10.15 Use of Proceeds............................................ 36
SECTION 11 CONDITIONS OF LENDING........................................... 36
11.1 Initial Loan................................................ 36
11.1.1 Notes............................................. 36
11.1.2 Resolutions....................................... 36
11.1.3 Consents, etc..................................... 37
11.1.4 Incumbency and Signature
Certificates...................................... 37
11.1.5 Opinion of Counsel for the
Company........................................... 37
11.1.6 Existing Credit Agreement
Amount............................................ 37
11.1.7 Termination of BNS Agreement...................... 37
11.1.8 Other............................................. 37
11.2 All Loans................................................... 37
11.2.1 Notice of Borrowing or
Conversion/Continuation........................... 37
11.2.2 Continuation of Representations
and Warranties.................................... 37
11.2.3 No Existing Default............................... 38
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.............................. 38
12.1 Events of Default........................................... 38
12.1.1 Non-Payment of the Loans, etc..................... 38
12.1.2 Non-Payment of Other Debt......................... 38
12.1.3 Other Material Obligations........................ 38
12.1.4 Bankruptcy, Insolvency etc........................ 38
12.1.5 Non-Compliance with Provisions
of This Agreement................................. 39
12.1.6 Warranties........................................ 39
12.1.7 ERISA............................................. 39
12.1.8 Judgments and Attachments......................... 39
12.1.9 Change in Control................................. 40
12.2 Effect of Event of Default.................................. 40
SECTION 13 THE AGENT....................................................... 40
13.1 Appointment and Authorization; "Agent"...................... 40
13.2 Delegation of Duties........................................ 40
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13.3 Liability of Agent.......................................... 41
13.4 Reliance by Agent........................................... 41
13.5 Notice of Default........................................... 42
13.6 Credit Decision............................................. 42
13.7 Indemnification of Agent.................................... 42
13.8 Agent in Individual Capacity................................ 43
13.9 Successor Agent............................................. 44
13.10 Withholding Tax............................................ 44
13.11 Co-Agent. ................................................ 45
SECTION 14 GENERAL......................................................... 46
14.1 Waiver; Amendments.......................................... 46
14.2 Confirmations............................................... 46
14.3 Notices..................................................... 46
14.4 Subsidiary References....................................... 47
14.5 Regulation U................................................ 47
14.6 Costs, Expenses and Taxes................................... 47
14.7 Indemnification by the Company.............................. 48
14.8 Successors and Assigns...................................... 48
14.9 Assignments; Participations................................. 49
14.9.1 Assignments....................................... 49
14.9.2 Participations.................................... 50
14.10 Governing Law.............................................. 51
14.11 Counterparts............................................... 51
14.12 Effect of Amendment and Restatement........................ 51
14.13 Forum Selection and Consent to
Jurisdiction............................................. 52
14.14 Waiver of Jury Trial....................................... 52
14.15 OREGON LEGAL NOTICE........................................ 52
SCHEDULE I Commitments and Percentages
SCHEDULE II Schedule of Subsidiaries
SCHEDULE 14.3 Lending Offices; Addresses for Notices
EXHIBIT A Form of Note (Section 3.1)
EXHIBIT B Form of Extension Request (Section 2.8)
EXHIBIT C Form of Opinion of Counsel for the
Company (Section 11.1.5)
EXHIBIT D Form of Assignment Agreement (Section 14.9)
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Notice of Conversion/Continuation
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AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 30,
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 several financial institutions from
time to time party to this Agreement (collectively, the "Lenders";
individually, a "Lender"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Lenders, and THE BANK OF NOVA SCOTIA, as
co-agent.
RECITALS
--------
WHEREAS, the Company, certain of the Lenders and Bank of America
Illinois (formerly known as Continental Bank) ("BAI"), as agent for
those Lenders, entered into a Credit Agreement dated as of June 30,
1994, as amended (the "Existing Credit Agreement"), which provides for
the making of loans in the maximum principal amount of $400,000,000;
WHEREAS, pursuant to an Assignment and Assumption Agreement dated
as of October 30, 1995 between BAI and BofA, to be effective on the date
hereof, BAI has assigned and delegated, and BofA has assumed all the
rights and obligations of BAI in its capacity as Agent under the
Existing Credit Agreement, and the Lenders and the Company desire to
confirm their agreement with such assignment and appoint BofA as Agent
hereunder, subject to the terms and conditions hereof;
WHEREAS, in order to provide for an increase in the maximum
principal amount of loans under the Existing Credit Agreement, as well
as the clarification and modification of certain other terms and
provisions of the Existing Credit Agreement, the Company, the Agent and
the Lenders have agreed to amend and restate the representations,
warranties, covenants, agreements and obligations of the Company in this
Amended and Restated Credit Agreement, which completely amends, restates
and replaces the Existing Agreement, all upon the terms and provisions
and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
SECTION 1 DEFINITIONS AND INTERPRETATION.
1.1 Definitions. When used herein the following terms 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
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by the Company to pay any amount pursuant to Section 7.6 or 8.1 or (ii)
the occurrence of any circumstances of the nature described in Section
8.2 or 8.3.
Affected Loan - see Section 8.3.
Agent means BofA in its capacity as agent for the Lenders
hereunder, and any successor agent arising under Section 13.9.
Agent-Related Persons means the Agent and any successor agent
arising under Section 13.9, together with their respective affiliates
(including, in the case of BofA, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
affiliates.
Agent's Payment Office means the address for payments set forth on
Schedule 14.3 or such other address as the Agent may from time to time
specify.
Agreement - see the Preamble.
Alternate Reference Rate means at any time the greater of (a) the
Federal Funds Rate plus 0.25% and (b) the Reference Rate.
Arranger means BA Securities, Inc., a Delaware corporation.
Assets Purchase Agreement means the Asset 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.
BAI - see the Recitals.
BofA means Bank of America National Trust and Savings Association,
a national banking association.
Business Day means any day (other than a Saturday or Sunday) on
which banks are open for commercial banking business in San Francisco,
California and Portland, Oregon and, in the case of a Business Day which
relates to a Eurodollar Loan, on which dealings are carried on in the
interbank eurodollar 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
3
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.
Code means the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder. References to sections of the Code
also refer to any successor sections.
Commitment as to any Lender means the commitment of such Lender to
make loans hereunder, as adjusted from time to time pursuant to Section
6.1 or Section 14.9. The amount of the initial Commitment of each
Lender is set forth on Schedule I.
Company - see the Preamble.
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) the Loans and 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 previously delivered to the Lenders
(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.
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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. A
Suretyship Liability arising under a TROL shall be deemed to be Debt for
Borrowed Money.
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.
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.
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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 trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
Eurocurrency Reserve Percentage means, for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward, if necessary, to the next 1/100th of 1%) in effect on such day
(whether or not applicable to any Lender) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System, or
any governmental authority succeeding to its principal functions, for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
Eurodollar Loan means any Loan which bears interest at a rate
determined by reference to the Eurodollar Rate (Reserve Adjusted).
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
6
Eurodollar 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 1/16th 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 11:00 a.m., New York City 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
upward, if necessary, to the nearest 1/100th of 1%) determined pursuant
to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as to all
Eurodollar Rate Loans then outstanding as of the effective date of any
change in the Eurocurrency Reserve Percentage.
Event of Default means any of the events described in Section 12.1.
Exemption Agreement - see Section 13.10.
Existing Credit Agreement - see the Recitals.
Extension Request - see Section 2.8.
Federal Funds Rate means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Business
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as
determined by the Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time)
on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
Fee Letter - see Section 5.2.
Fiscal Quarter means any fiscal quarter of a Fiscal Year.
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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 (calculated without duplication) 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 (including rent paid pursuant to a TROL) 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 (including rent paid pursuant to a TROL) 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.
Floating Rate Loan means any Loan which bears interest at or by
reference to the Alternate Reference Rate.
GAAP means those generally accepted accounting principles as in
effect from time to time.
Group - see Section 2.2.
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 an/or currency risk or
changes in commodity prices.
Interest Period means, with respect to any Eurodollar Loan, the
period commencing on and including the date such Loan is made or is
converted from a Floating Rate Loan, or on the last day of the
immediately preceding Interest Period for such Loan, and ending on but
excluding the day which is one, two, three or six months thereafter, as
the Company shall specify in the related Notice of Borrowing or Notice
of Conversion/Continuation pursuant to Section 2.3 or 2.4; provided,
however, that
(a) 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);
(b) if there exists no day in the appropriate subsequent calendar
month numerically corresponding to the first
8
day of such Interest Period, such Interest Period shall end on
the last Business Day of such month; and
(c) the Company may not select any Interest Period which extends
beyond the scheduled Termination Date.
Lender - see the Preamble.
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.
Loan - see Section 2.1.
Loan Documents means this Agreement, the Notes, the Fee Letter and
all other documents delivered to the Agent or any Lender in connection
herewith.
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", within the meaning
of Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate makes, is making, or is obligated to make contributions or,
during the preceding three calendar years, has made, or been obligated
to make, contributions.
Note - see Section 3.1.
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Notice of Borrowing means a notice in substantially the form of
Exhibit E.
Notice of Conversion/Continuation means a notice in substantially
the form of Exhibit F.
Objecting Lender - see Section 2.8.
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, or any
governmental authority succeeding to any of its principal functions
under ERISA.
Pension Plan means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Company sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described
in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
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 principle amount of all
outstanding Loans). The Percentages of Lenders as of the Effective Date
are set forth in 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.
Plan means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company sponsors or maintains or to which the Company
makes, is making, or is obligated to make contributions and includes any
Pension Plan.
Reference Lender means each of NationsBank, The Bank of New York,
The Bank of Nova Scotia and BofA.
Reference Rate means at any time the rate of interest in effect for
such day as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate." (The "reference rate"
is a rate set by BofA based upon various factors including BofA's costs
and desired return, general economic
10
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate.) Any change in the reference rate announced by BofA
shall take effect at the opening of business on the day specified in the
public announcement of such change.
Release means a "release", as such term is defined in CERCLA.
Reportable Event means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
Required Lenders means Lenders having an aggregate Percentage of
66-2/3% or more.
SEC means the Securities and Exchange Commission.
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. Suretyship Liability shall include any
liability or contingent liability of a Person under or in connection
with a TROL. 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. As of any date, the amount of any
Person's obligation under any TROL shall be equal to the amount which
such Person would be obligated to pay if the TROL was accelerated on
such date (disregarding accrued scheduled lease payments which would be
characterized as interest if such TROL were treated as a Capital Lease
under GAAP).
Termination Date means June 30, 2000, as such date is extended from
time to time pursuant to Section 2.8 or such other date on which the
Commitments shall terminate pursuant to Section 6.1 or 12.2.
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TROL means any tax retention operating lease, off balance sheet
lease, synthetic lease or similar lease transaction where the lessee is
treated as owner of the leased property for U.S. federal income tax
purposes while the lease is accounted for on the financial statements of
the lessee, prepared in accordance with GAAP, as an operating lease,
including without limitation that certain Lease Agreement (Tax Retention
Operating Lease) dated as of May 5, 1995 between First Security Bank of
Utah, N.A., as lessor, and the Company, as lessee.
Type of Loan or Borrowing - see Section 2.2. The types of Loans or
borrowings under this Agreement are as follows: Floating Rate Loans or
borrowings and Eurodollar Loans or borrowings.
Unfunded Pension Liability means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code
for the applicable plan year.
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 of 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 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
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(collectively the "Loans" and individually each a "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 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 Loans which
all Lenders shall be committed to have outstanding hereunder shall not
at any time exceed $500,000,000 (as such amount is reduced from time to
time pursuant to Section 6.1).
2.2 Various Types of Loans. Each Loan shall be either a Floating
Rate Loan or a Eurodollar Loan (each a "type" of Loan), as the Company
shall specify in the related Notice of Borrowing or Notice of
Conversion/Continuation pursuant to Section 2.3 or 2.4. Eurodollar
Loans having the same Interest Period are sometimes alled a "Group" or
collectively "Groups". Floating Rate Loans and Eurodollar Loans may be
outstanding at the same time provided that (i) not more than eight
different Groups of Loans shall be outstanding at any one time and (ii)
the aggregate principal amount of each Group of Loans shall at all times
(including after giving effect to any conversion or continuation of any
Loans) be at least $10,000,000 (in the case of a Eurodollar Loan) and an
integral multiple of $1,000,000.
2.3 Borrowing Procedures. The Company shall give written or
telephonic notice (in the case of telephonic notice, followed promptly
by written notice by facsimile) to the Agent of each proposed borrowing
in the form of a Notice of Borrowing not later than (a) in the case of a
Floating Rate borrowing, 9:00 a.m., San Francisco time, on the proposed
date of such borrowing, and (b) in the case of a Eurodollar borrowing,
9:00 a.m., San Francisco time, at least three Business Days prior to the
proposed date of such borrowing. Each such Notice of Borrowing 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
of Borrowing, the Agent shall advise each Lender thereof. Not later
than 11:00 a.m., San Francisco time, on the date of a proposed
borrowing, each Lender shall provide the Agent at the Agent's Payment
Office 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 will then make such funds available to the Company
at such office by crediting the account of the Company on the books of
BofA with the aggregate of the amounts made available to the Agent by
the Lenders or by wire transfer in accordance with written instructions
provided to the Agent by the Company with the applicable Notice of
Borrowing, in each case in like funds as received by the Agent. Each
borrowing shall be on a Business Day. Each borrowing shall be in
aggregate amount of at least $1,000,000, in the case of Floating Rate
Loans, or $10,000,000,
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in the case of Eurodollar Loans, and shall be in an integral multiple of
$1,000,000.
2.4 Continuation and Conversion Procedures. Subject to the
provisions of the last sentence of Section 2.2, the Company may convert
all or any part of any outstanding Loan into a 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 Loan, by giving written or telephonic notice
(in the case of telephonic notice, followed promptly by written notice
by facsimile) to the Agent in the form of a Notice of
Conversion/Continuation not later than (a) in the case of conversion
into a Floating Rate Loan, 9:00 a.m., San Francisco 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., San Francisco
time, at least three Business Days prior to the proposed date of such
conversion or continuation. Each Notice of Conversion/Continuation
shall be effective upon receipt by the Agent and shall specify the date
and amount of such conversion or continuation, the amount of 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 of
Conversion/Continuation, the Agent shall advise each Lender thereof.
Subject to Section 2.5, 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 a
timely Notice of Conversion/Continuation with respect to a Eurodollar
Loan, such Loan shall automatically convert to a Floating Rate Loan on
the last day of the Interest Period therefor.
2.5 Conditions. Notwithstanding any other provision of this
Agreement, no Lender shall be obligated to make any 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 Default exists.
2.6 Pro Rata Treatment. All borrowings, conversions and
repayments shall be effected so that after giving effect thereto, each
Lender will have a pro rata share (according to its Percentage) of all
types and Groups of Loans.
2.7 Commitments Several. The failure of any Lender to make a
requested Loan on any date shall not relieve any other Lender of its
obligation (if any) to make a Loan on such date, but a Lender shall be
responsible for the failure of any other Lender to make any Loan to be
made by such other Lender.
2.8 Extension of Termination Date. On or before May 1 of each
year, commencing on May 1, 1996, 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
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Request") in the form of Exhibit B, requesting an extension of the
Termination Date for a period of one year. On or before June 1 of each
year that 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 by June 1
of such year, 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 year effective on
June 1 of the applicable year. If any Lender (an "Objecting Lender")
rejects, or is deemed not to have consented to, an Extension Request by
June 1 of the applicable year, the Termination Date shall not be so
extended; provided that if Lenders with an aggregate Percentage of 20%
or less are Objecting Lenders, then the Termination Date shall be so
extended if, on or before June 30 of the applicable year, 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 a
promissory note (as amended, supplemented, replaced or otherwise
modified from time to time, individually each a "Note" and collectively
for all Lenders the "Notes") substantially in the form set forth in
Exhibit A, 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) on the Termination Date.
3.2 Recordkeeping. Each Lender shall record in its records, or at
its option on the schedule attached to its Note, the date and amount of
each Loan made by such Lender, each repayment or conversion thereof and,
in the case of each Eurodollar 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 Note. 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 Note to repay the principal amount of the
Loans evidenced by such Note together with all interest accruing
thereon.
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SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest on the
unpaid principal amount of each Loan for the period commencing on and
including the date of such Loan to but excluding the date such Loan is
paid in full, as follows:
(a) at all times while such Loan is a Floating Rate Loan, at
a rate per annum equal to the Alternate Reference Rate from time to
time in effect; and
(b) at all times while such 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 0.275%;
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 Reference
Rate from time to time in effect plus 1%.
4.2 Interest Payment Dates. Accrued interest on each Floating
Rate Loan shall be payable on the last day of each January, April, July
and October and on the Termination Date. Accrued interest on each
Eurodollar 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 on the Termination Date.
During the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the Required
Lenders.
4.3 Setting and Notice of Eurodollar Rates. The applicable
Eurodollar 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 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 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 definition of Eurodollar Rate). If, as to any
Interest Period, any Reference Lender is unable or fails to notify the
Agent of its applicable rate by 9:00 a.m., San Francisco time, two
Business Days before such Interest Period, then the Eurodollar Rate
shall be determined on the basis of the rates of the other Reference
Lenders.
16
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 Floating Rate Loans bearing interest at the Reference Rate,
365 or 366 days, as appropriate). The applicable interest rate for each
Floating Rate Loan shall change simultaneously with each change in the
Reference 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 0.15% 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 shall pay an agency fee to the Agent
for the Agent's own account, as required by the letter agreement ("Fee
Letter") between the Company and Agent (as successor-by-assignment to
BAI, as Agent) dated July 7, 1994, or as otherwise agreed to from time
to time by the Company and the Agent.
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS; REPAYMENT
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 amount of the Commitments 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
$10,000,000 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. Once reduced in accordance
with this Section, the Commitments may not be increased.
6.2 Prepayments. The Company may from time to time prepay the
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 9:00 a.m., San Francisco time, on the date of such
prepayment, in the case of Floating Rate Loans, and not less than three
Business Days prior to the date of such prepayment, in the case of
Eurodollar Loans, in each case specifying the Loans to be prepaid and
the date (which shall be a Business Day) and amount of prepayment, (b)
each partial
17
prepayment of Loans shall be in an aggregate principal amount of at
least $10,000,000 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. If such
notice is given by the Company, the Company shall make such prepayment
and the payment amount specified in such notice shall be due and payable
on the date specified therein, together with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to
Section 8.4. After giving effect to any prepayment of Eurodollar Loans,
each Group of Eurodollar Loans shall be at least $10,000,000 and an
integral multiple of $1,000,000.
6.3 Repayment. The Company shall repay to the Lenders on the
Termination Date the aggregate principal amount of Loans outstanding on
such date.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments to be made by the Company
shall be made without set-off, recoupment or counterclaim. All payments
of principal of or interest on the Notes, and of all fees, shall be made
by the Company to the Agent in immediately available funds at the
Agent's Payment Office not later than 10:00 a.m., San Francisco 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 such
payments 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 Loans as the Company shall direct by notice to
be received by the Agent on or before the date of such payment or, in
the absence of such notice, as the Agent shall determine in its
discretion. 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, 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.
18
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 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. 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 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
Notes (other than any non-pro rata interest payment resulting from a
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 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 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, 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 if
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
19
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) 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.
The provisions of this Section shall survive repayment of the
Loans, cancellation of the Notes and any termination of the Commitments
or this Agreement.
7.7 Funding Reliance.
(a) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Lenders that the Company will
not make such payment in full as and when required, the Agent may assume
that the Company has made such payment in full to the Agent on such date
in immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Lender
on such due date an amount equal to the amount then due such Lender. If
and to the extent the Company has not made such payment in full to the
Agent, each Lender shall repay to the Agent on demand such amount
distributed to such Lender, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is distributed
to such Lender until the date repaid.
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(b) Unless the Agent receives notice from a Lender at least one
Business Day prior to the date of a requested borrowing that such Lender
will not make available as and when required hereunder to the Agent for
the account of the Company the amount of that Lender's Percentage of the
borrowing, the Agent may assume that each Lender has made such amount
available to the Agent in immediately available funds on the borrowing
date and the Agent may (but shall not be so required), in reliance upon
such assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Lender shall not have
made its full amount available to the Agent in immediately available
funds and the Agent in such circumstances has made available to the
Company such amount, that Lender shall on the Business Day following
such borrowing date make such amount available to the Agent, together
with interest at the Federal Funds Rate for each day during such period.
A notice of the Agent submitted to any Lender with respect to amounts
owing under this subsection (b) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Agent
shall constitute such Lender's Loan on the date of borrowing for all
purposes of this Agreement. If such amount is not made available to the
Agent on the Business Day following the borrowing date, the Agent will
notify the Company of such failure to fund and, upon demand by the
Agent, the Company shall pay such amount to the Agent for the Agent's
account, together with interest thereon for each day elapsed since the
date of such borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such borrowing.
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, its Note or its obligation to make Eurodollar
Loans, or shall change the basis of taxation of payments to any
Lender of the principal of or interest on its Eurodollar Loans or
any other amounts due under this Agreement in respect of its
Eurodollar Loans or its obligation to make Eurodollar 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
21
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, its Note or its
obligation to make Eurodollar 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 to reduce the amount of any sum
received or receivable by such Lender (or its Eurodollar Office) under
this Agreement or under its Note 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
22
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 two or more Reference Lenders that
deposits in Dollars (in the applicable amounts) are not being offered to
such Reference Lenders 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 such 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 a
Floating 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
Floating 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 a Floating Rate
Loan. Each
23
Floating 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, but excluding any loss of margin), as reasonably determined by
such Lender, as a result of (a) any payment (including, without
limitation, after acceleration thereof) or prepayment or conversion of
any Eurodollar Loan of such Lender on a date other than the last day of
an Interest Period for such Loan (including, without limitation, any
conversion pursuant to Section 8.3) or (b) any failure of the Company to
borrow or convert any Loans on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation pursuant to this
Agreement (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
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 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 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
24
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 Note 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 the Commitments or 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:
25
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, By-Laws 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 28, 1995 and unaudited consolidated
financial statements as at August 12, 1995, 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.
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 28, 1995 and the Company's Quarterly Report on Form 10-Q for the
Fiscal Quarter ended August 12, 1995, no
26
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 Plans.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS and to
the best knowledge of the Company, nothing has occurred which would
cause the loss of such qualification, in each case except as the same
could not result in the incurrence by the Company or any ERISA Affiliate
of any material liability, fine or penalty. The Company and each ERISA
Affiliate has made all required contributions to any Plan subject to
Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan, in each case except as the same
could not result in the incurrence by the Company or any ERISA Affiliate
of any material liability, fine or penalty.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur which could result in the incurrence by the Company or
any ERISA Affiliate of any material liability, fine or
27
penalty; (ii) no Pension Plan has any material Unfunded Pension
Liability; (iii) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any material liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
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-
28
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 through the Agent:
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 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
29
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, in form and substance
reasonably satisfactory to the Agent and the Required Lenders, (a) to
the effect that such officer is not aware of any Event of Default or
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, period 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 a 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 occurrence of any of the following events affecting the Company or
any ERISA Affiliate, along with a copy of any notice with respect to
such event that is filed with a governmental authority and any notice
delivered by a governmental authority to the Company or any ERISA
Affiliate with respect to such event: (i) an ERISA Event which could
result in the incurrence by the Company or any ERISA Affiliate of any
material liability, fine or penalty, (ii) a material increase in the
Unfunded Pension Liability of any Pension Plan, (iii) the adoption of,
or the commencement of any material contributions to, any Plan subject
to Section 412 of the Code by the Company or any ERISA Affiliate, or
(iv) the adoption of any amendment to a Plan subject to Section 412 of
the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability; and (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.
30
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
31
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 (other than any Lien imposed by ERISA and
not permitted under clause (g) of this Section) 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 on the cost of the
construction, extension or improvement of any new or existing
asset created contemporaneously with, or within 270 days
after, such acquisition, completion of such construction,
such
32
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 of 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.
33
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
34
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. Any
obligations of the Company or any Material Subsidiary under any TROL to
which it is a party (whether matured or unmatured or contingent) shall
not be deemed to be prohibited by this Section 10.9.
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
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
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 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 Default
35
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 ERISA. (a) Maintain, and cause each of its ERISA Affiliates
to maintain, each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law;
and (b) make, and cause each of its ERISA Affiliates to make, all
required contributions to any Plan subject to Section 412 of the Code,
and not, and not suffer or permit any of its ERISA Affiliates to: (x)
engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
could reasonably expected to result in liability of the Company in an
aggregate amount in excess of $5,000,000; or (y) engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
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 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) (i)
for the Fiscal Years ending on or about January 31, 1996, January 31,
1997 and January 31, 1998, (A) pay cash dividends to its shareholders in
an aggregate amount, in any Fiscal Year, not exceeding 40% of its
consolidated net earnings for the prior
36
Fiscal Year, and (B) repurchase its stock, in an aggregate amount not
exceeding the greater of (x) 40% of its consolidated net earnings for
the prior Fiscal Year or (y) the cumulative amount of $70,000,000 for
stock repurchases made during the two year period from June 15, 1995
through and including June 14, 1997, less, in each case of clause (x)
and (y), the amount of cash dividends paid to its shareholders in such
Fiscal Years, and (ii) thereafter, 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 (a) evidence, reasonably satisfactory to the Agent,
that all obligations of the Company under the Existing Credit Agreement
have been paid in full and (b) 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 Lender, 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
37
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, counsel to the Company, substantially in the form of Exhibit C.
11.1.6 Existing Credit Agreement Amount. Evidence of payment or
repayment by the Company of (i) all facility fees accrued to the
Effective Date under Section 5.1 of the Existing Credit Agreement and
(ii) all principal, accrued interest and any amounts payable under
Section 8.4 of the Existing Credit Agreement.
11.1.7 Termination of BNS Agreement. A certificate of the
President, Chief Financial Officer or Treasurer of the Company dated as
of the Effective Date, certifying that all commitments to extend credit
under the Credit Agreement, dated as of March 6, 1995, among the
Company, various financial institutions and The Bank of Nova Scotia, as
agent, as amended, have been irrevocably terminated and that all
principal, interest and fees due thereunder have been paid in full.
11.1.8 Other. Such other documents as the Agent or any Lender may
reasonably request.
11.2 All Loans. The obligation of each Lender to make any Loan to
be made by it or to continue or convert any Loan as or into a Eurodollar
Loan under Section 2.4 is subject to the satisfaction of the following
conditions precedent on the relevant borrowing date or date of
conversion or continuation:
11.2.1 Notice of Borrowing or Conversion/Continuation. The
Agent shall have received a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable;
11.2.2 Continuation of Representations and Warranties. The
representations and warranties in Section 9 (excluding Sections 9.6 and
9.8) shall be true and correct in all material
38
respects on and as of such borrowing date or date of such conversion or
continuation with the same effect as if made on and as of such date; and
11.2.3 No Existing Default. No Default or Event of Default
shall exist or shall result from such borrowing or a continuation or
conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation and each
telephonic notice of a requested borrowing, conversion or continuation
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of each such notice
and as of each requested borrowing date or date of such conversion or
continuation, as applicable, that the conditions in this Section 11.2
are satisfied.
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
39
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 ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Company under Title
IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $5,000,000; (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans at any time exceeds
$5,000,000; or (iii) the Company or any ERISA Affiliate shall fail to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $5,000,000.
12.1.8 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.
40
12.1.9 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 Appointment and Authorization; "Agent". Each Lender hereby
irrevocably (subject to Section 13.9) appoints, designates and
authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in
any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Agent have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against the Agent. Without
limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent
contracting parties.
13.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining
41
to such duties. The Agent shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
13.3 Liability of Agent. None of the Agent-Related Persons shall
(i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner
to any of the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary or affiliate of the
Company, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under
or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of the
Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Company or any of the Company's
Subsidiaries or affiliates.
13.4 Reliance by Agent. (a) The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent shall be
fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate
and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 11.1, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter either sent by the
Agent to such Lender for consent, approval, acceptance or satisfaction,
or required thereunder to
42
be consented to or approved by or acceptable or satisfactory to the
Lender.
13.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Agent for the account of
the Lenders, unless the Agent shall have received written notice from a
Lender or the Company referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". The Agent will notify the Lenders of its receipt of any such
notice. The Agent shall take such action with respect to such Default
or Event of Default as may be requested by the Required Lenders in
accordance with Section 12; provided, however, that unless and until the
Agent has received any such request, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable
or in the best interest of the Lenders.
13.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to
any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon any Agent-Related Person and
based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
credit worthiness of the Company and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company hereunder. Each Lender
also represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition
and credit worthiness of the Company. Except for notices, reports and
other documents expressly herein required to be furnished to the Lenders
by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition
or credit worthiness of the Company which may come into the possession
of any of the Agent-Related Persons.
13.7 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders
43
shall indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting the
obligation of the Company to do so), pro rata, from and against any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
all fees and disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and disbursements of
internal counsel) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans or the
termination of the Commitments and the termination, resignation or
replacement of the Agent or replacement of any Lender) be imposed on,
incurred by or asserted against any such Agent-Related Person in any way
relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Agent-Related Person
under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any insolvency
proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or
not any such indemnified Agent-Related Person is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"); provided,
however, that no Lender shall be liable for the payment to the Agent-
Related Persons of any portion of such Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including attorneys' fees and disbursements and the allocated
costs of staff counsel) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that the
Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of
the Loans, cancellation of the Notes and any termination of the
Commitments or this Agreement and the resignation or replacement of the
Agent.
13.8 Agent in Individual Capacity. BofA and its affiliates may
make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other
business with the Company and its Subsidiaries and affiliates as though
BofA were not the Agent hereunder and without notice to or consent of
the Lenders. The Lenders acknowledge that, pursuant to such activities,
BofA or its affiliates may receive information regarding the Company or
its affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary)
and acknowledge that the Agent shall be under no obligation to provide
such information to them. With respect to
44
its Loans, BofA shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it
were not the Agent, and the terms "Lender" and "Lenders" include BofA in
its individual capacity.
13.9 Successor Agent. The Agent may, and at the request of the
Required Lenders shall, resign as Agent upon 30 days' notice to the
Lenders. If the Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor agent for the
Lenders. If no successor agent is appointed prior to the effective date
of the resignation of the Agent, the Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the
Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties
as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 13 and Sections 14.6
and 14.7 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is
30 days following a retiring Agent's notice of resignation, the retiring
Agent's resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
13.10 Withholding Tax. (a) If any Lender is a "foreign
corporation, partnership or trust" within the meaning of the Code, such
Lender agrees with and in favor of the Agent and the Company (such
Lender's "Exemption Agreement"), to deliver to the Agent and the
Company:
(i) if such Lender claims an exemption from withholding
tax under a United States tax treaty, two properly completed and
executed copies of IRS Form 1001 before the payment of any interest
in the first calendar year and before the payment of any interest
in each third succeeding calendar year during which interest may be
paid under this Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of
such Lender, two properly completed and executed copies of IRS Form
4224 before the payment of any interest is due in the first taxable
year of such Lender and in each succeeding taxable year of such
Lender during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required under
the Code or other laws of the United States
45
as a condition to exemption from, or reduction of, United States
withholding tax.
Such Lender agrees to promptly notify the Agent and the Company of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from withholding tax under
a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or
part of the obligations of the Company hereunder to such Lender, such
Lender agrees to notify the Agent and the Company of the percentage
amount in which it is no longer the beneficial owner of obligations of
the Company hereunder to such Lender. To the extent of such percentage
amount, the Agent and the Company will treat such Lender's IRS Form 1001
as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
obligations of the Company hereunder to such Lender, such Lender agrees
to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent, then the
Agent may withhold from any interest payment to such Lender not
providing such forms or other documentation an amount equivalent to the
applicable withholding tax imposed by Sections 1441 and 1442 of the
Code, without reduction.
(e) If the Internal Revenue Service or any other
governmental authority of the United States or other jurisdiction
asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or was not properly executed, or
because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Agent fully for all amounts paid, directly or indirectly,
by the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable
to the Agent under this Section, together with all costs and expenses
(including attorneys' fees and disbursements and the allocated costs of
staff counsel). The obligation of the Lenders under this subsection
shall survive the payment of the Loans, cancellation of the Notes and
any termination of the Commitments or this Agreement and the resignation
or replacement of the Agent.
13.11 Co-Agent. The Lender identified on the facing page and
signature pages of, and in the preamble to, this Agreement as a "co-
agent" shall not have any right, power, obligation,
46
liability, responsibility or duty under this Agreement or any other Loan
Document other than those applicable to all Lenders as such. Without
limiting the foregoing, the Lender so identified as a "co-agent" shall
not have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not
rely, on the Lender so identified in deciding to enter into this
Agreement or in taking or not taking action 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 amount of the Commitments, (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. (a) All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless
the context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Company by facsimile (i)
shall be immediately confirmed by a telephone call to the recipient at
the number specified on Schedule 14.3, and (ii) shall be followed
promptly by delivery of a hard copy original thereof) and mailed, faxed
or delivered, to the address or facsimile number specified for notices
on Schedule 14.3; or, as directed to the Company or the Agent, to such
other address as shall be designated by such party in a written notice
to the other parties, and as directed to any other party, at such other
47
address as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine (and, in the case of notices to or from the
Company by facsimile transmission, when receipt is confirmed by
confirming transmission equipment or acknowledged by the addressee),
respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except
that notices pursuant to Section 2 or Section 13 to the Agent shall not
be effective until actually received by the Agent.
(c) Any agreement of the Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Agent and the
Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice
and the Agent and the Lenders shall not have any liability to the
Company or other Person on account of any action taken or not taken by
the Agent or the Lenders in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans shall not be
affected in any way or to any extent by any failure by the Agent and the
Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Lenders of a confirmation
which is at variance with the terms understood by the Agent and the
Lenders to be contained in the telephonic or facsimile notice.
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, and the allocated
costs of staff counsel for the Agent) 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)
48
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
the Commitments or 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 the Commitments or 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
49
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 Loans and
Commitment (which assignment and delegation shall be of a constant, and
not a varying, percentage of all the assigning Lender's Loans) in a
minimum aggregate amount equal to the lesser of (i) the assigning
Lender's remaining Commitment and (ii) $10,000,000; 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 and (b) 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 D (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 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
50
assignment and delegation, the Company shall execute and deliver to the
Agent (for delivery to the Assignee and the Assignor, as applicable) a
new Note in the principal amount of the Assignee's Commitment and, if
the assigning Lender has retained a Commitment hereunder, a replacement
Note in the principal amount of the Commitment retained by the assigning
Lender (such Note to be in exchange for, but not in payment of, the
predecessor Note held by such assigning Lender). Each such 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 Loans and its 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
51
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 a
contract made under and governed by the laws of the State of California
applicable to contracts made and to be performed entirely within the
State of California; provided that the Agent and the Lenders shall
retain all rights arising under federal law. 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 Effect of Amendment and Restatement. (a) This Agreement is
intended to completely amend, restate and replace the Existing Credit
Agreement, without novation. The Company and the Lenders party to the
Existing Credit Agreement agree that from and after the Effective Date,
BAI in its capacity as agent under the Existing Credit Agreement shall
relinquish its rights and be released from its duties and obligations as
agent thereunder and under any documents or instruments given in
connection therewith; provided, however, that the provisions of Section
13 of the Existing Credit Agreement and Sections 14.6 and 14.7 of the
Existing Credit Agreement shall inure to the benefit of BAI as to any
actions taken or omitted to be taken by it while it was agent
thereunder.
(b) Concurrently with the Effective Date, BAI shall cease to
be a "Lender" under and for all purposes of this Agreement and shall no
longer have any rights or obligations hereunder, except for (i) rights
to receive payment of indemnities, reimbursements and other similar
obligations and (ii) obligations to indemnify, reimburse or make payment
to the Agent, any Lender or the Company with respect to actions,
failures to act, conditions, circumstances or events, in either
52
case arising under the Existing Credit Agreement on or prior to the
Restatement Effective Date.
14.13 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT OR NOTE, MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE
STATE OF CALIFORNIA OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA. THE COMPANY HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF CALIFORNIA. 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.
14.14 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-
RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS
AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY
IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS
OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.15 OREGON LEGAL NOTICE. WITHOUT LIMITING THE VALIDITY OF THE
CHOICE OF CALIFORNIA 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.
53
Delivered at San Francisco, California, as of the day and year first
above written.
FRED MEYER, INC.
By /s/
-------------------------------
Vice President and Corporate
Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By /s/
-------------------------------
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Lender
By /s/ STEVEN F. STERLING
-------------------------------
Title Vice President
THE BANK OF NOVA SCOTIA, as co-agent and
as a Lender
By /s/
-------------------------------
Title Relationship Manager
BANQUE NATIONALE DE PARIS
By /s/ JUDITH A. DOWLING
-------------------------------
Title Vice President
By /s/ KATHERINE WOLFE
-------------------------------
Title Vice President
54
CIBC Inc.
By /s/
-------------------------------
Title Assistant Vice President
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND"
NEW YORK BRANCH
By /s/ JESSALYN PETERS
-------------------------------
Title Vice President
By /s/ JAN REECE
-------------------------------
Title Vice President and Manager
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/
-------------------------------
Title Authorized Signatory
CREDIT LYONNAIS LOS ANGELES BRANCH
By /s/
-------------------------------
Title Vice President
CREDIT SUISSE
By /s/ STEPHEN M. FLYNN
-------------------------------
Title Member of Senior Management
By /s/ MARILOU PALENZUELA
-------------------------------
Title Member of Senior Management
55
FIRST INTERSTATE BANK OF OREGON, N.A.
By /s/ MARCIA BENNER
-------------------------------
Title Vice President
By
-------------------------------
Title
----------------------------
FIRST SECURITY BANK OF UTAH, N.A.
By /s/ JUDY CALLISTER
-------------------------------
Title VICE PRESIDENT
By
-------------------------------
Title
----------------------------
KEY BANK OF WASHINGTON
By /s/
-------------------------------
Title VICE PRESIDENT
NATIONSBANK OF TEXAS, N.A.
By /s/ WILLIAM B. GUFFEY
-------------------------------
Title Vice President
By
-------------------------------
Title
----------------------------
SEATTLE FIRST NATIONAL BANK
By /s/
-------------------------------
Title Vice President
By
-------------------------------
Title
----------------------------
56
THE BANK OF CALIFORNIA, N.A.
By /s/
-------------------------------
Title Assistant Vice President
By
-------------------------------
Title
----------------------------
THE BANK OF NEW YORK
By /s/ CHARLOTTE SOH
-------------------------------
Title Assistant Vice President
By
-------------------------------
Title
----------------------------
THE BANK OF TOKYO, LTD. PORTLAND
BRANCH
By /s/
-------------------------------
Title Vice President
THE FUJI BANK, LTD.
By /s/
-------------------------------
Title Joint General Manager
By
-------------------------------
Title
----------------------------
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By /s/
-------------------------------
Title Vice President
By
-------------------------------
Title
----------------------------
57
THE INDUSTRIAL BANK OF JAPAN, LTD.,
SAN FRANCISCO AGENCY
By /s/
-------------------------------
Title General Manager
UNION BANK
By /s/
-------------------------------
Title Vice President
UNITED STATES NATIONAL BANK OF OREGON
By /s/
-------------------------------
Title Vice President
By
-------------------------------
Title
----------------------------
WEST ONE BANK, IDAHO
By /s/
-------------------------------
Title Vice President
By
-------------------------------
Title
----------------------------
Acknowledged:
BANK OF AMERICA ILLINOIS
By /s/
- -------------------------------
Title Vice President
S-I
SCHEDULE I
COMMITMENTS AND PERCENTAGES
Lender Commitment Percentage
- ------ ---------- ----------
[BankAmerica Corporation-
affiliated Lenders]
Bank of America National Trust
and Savings Association $45,000,000 9.00%
Seattle First National Bank 20,000,000 4.00
---------- -----
[65,000,000] [13.00]
The Bank of Nova Scotia 60,000,000 12.00
Banque Nationale de Paris 15,000,000 3.00
CIBC Inc. 10,000,000 2.00
Cooperative Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank
Nederland" New York Branch 25,000,000 5.00
Credit Lyonnais
Cayman Island Branch and
Credit Lyonnais
Los Angeles Branch 15,000,000 3.00
Credit Suisse 15,000,000 3.00
First Interstate Bank of Oregon,
N.A. 50,000,000 10.00
First Security Bank of Utah, N.A. 15,000,000 3.00
Key Bank of Washington 15,000,000 3.00
NationsBank of Texas, N.A. 50,000,000 10.00
The Bank of California, N.A. 15,000,000 3.00
The Bank of New York 20,000,000 4.00
The Bank of Tokyo, Ltd.
Portland Branch 30,000,000 6.00
The Fuji Bank, Ltd. 15,000,000 3.00
The HongKong and Shanghai Banking
Corporation Limited 15,000,000 3.00
The Industrial Bank of Japan, Ltd.,
San Francisco Agency 15,000,000 3.00
Union Bank 5,000,000 1.00
United States National Bank of
Oregon 30,000,000 6.00
West One Bank, Idaho 20,000,000 4.00
----------- ------
TOTAL $500,000,000 100.00%
=========== ======