Exhibit 4.5
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REVOLVING CREDIT AGREEMENT
Dated as of July 31, 1995
among
MORRISON KNUDSEN CORPORATION,
an Ohio corporation,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS............................................. 2
1.01 Defined Terms................................................. 2
1.02 Other Definitional Provisions................................. 12
ARTICLE II. AMOUNT AND TERMS OF CREDIT...............................13
2.01 The Loans..................................................... 13
2.02 Minimum Amount of Each Borrowing.............................. 13
2.03 Notice of Borrowing........................................... 13
2.04 Disbursement of Funds......................................... 14
2.05 Notes......................................................... 14
2.06 Pro Rata Borrowings........................................... 15
2.07 Computation of Fees and Interest.............................. 16
2.08 Payments by the Company....................................... 16
2.09 Prepayments................................................... 17
2.10 Sharing of Payments, Etc...................................... 17
2.11 Guaranty...................................................... 18
2.12 Security Agreement............................................ 18
2.13 Leasehold Mortgage............................................ 18
2.14 Operating Account and Metra Payment Account................... 18
2.15 Agent Administration Fee...................................... 19
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY.................. 19
3.01 Taxes......................................................... 19
3.02 Increased Costs and Reduction of Return....................... 22
3.03 Certificates of Banks......................................... 23
3.04 Survival...................................................... 23
ARTICLE IV CONDITIONS PRECEDENT.................................... 23
4.01 Conditions to the Effectiveness of this Agreement............. 23
(a) Agreement............................................... 23
(b) Notes................................................... 24
(c) Guaranty and Security Agreement......................... 24
(d) Resolutions; Incumbency................................. 24
(e) Articles of Incorporation; Bylaws and Good Standing..... 24
(f) Legal Opinions.......................................... 25
(g) Payment of Fees......................................... 25
(h) Certificate............................................. 25
(i) Approved Budget......................................... 25
(j) Financing Statements.................................... 25
(k) Metra Side Letter....................................... 25
(l) Landlord's Agreement.................................... 26
(m) Landlord's Agreement.................................... 26
(n) Recording of Leasehold Mortgage......................... 26
(o) Subordination Agreement................................. 26
(p) Intercreditor Arrangements.............................. 26
(q) Global Restructuring.................................... 26
(r) Metra Payment Instruction Letter and Acknowledgement of
Receipt................................................. 27
(s) Other Documents......................................... 27
4.02 Conditions to Each Borrowing................................. 27
(a) Notice of Borrowing..................................... 27
(b) Continuation of Representations and Warranties.......... 27
(c) No Existing Default..................................... 27
ARTICLE V REPRESENTATIONS AND WARRANTIES.......................... 27
5.01 Corporate Existence and Power................................. 27
5.02 Corporate Authorization; No Contravention..................... 28
5.03 Governmental Authorization.................................... 28
5.04 Binding Effect................................................ 29
5.05 No Default.................................................... 29
5.06 Use of Proceeds............................................... 29
5.07 Regulated Entities............................................ 29
5.08 The Contract.................................................. 29
5.09 Full Disclosure............................................... 30
5.10 Collateral.................................................... 30
5.11 Security Documents............................................ 30
5.12 Bank Accounts................................................. 31
ARTICLE VI AFFIRMATIVE COVENANTS................................... 31
6.01 Notices....................................................... 31
6.02 Use of Proceeds............................................... 31
6.03 Full Disclosure............................................... 32
6.04 Contract Information.......................................... 32
6.05 Performance of Contract....................................... 32
6.06 Access to Ernst & Young LLP................................... 32
6.07 Further Assurances............................................ 32
ARTICLE VII NEGATIVE COVENANTS...................................... 33
7.01 Limitation on Liens on Collateral............................. 33
7.02 Bank Accounts................................................. 33
ARTICLE VIII EVENTS OF DEFAULT....................................... 33
8.01 Event of Default.............................................. 33
(a) Non-Payment............................................. 33
(b) Representation or Warranty.............................. 34
(c) Other Defaults.......................................... 34
(d) Event of Default Under the Override Agreement........... 34
(e) Bankruptcy or Insolvency................................ 34
(f) Involuntary Proceedings................................. 34
(g) Drawing under Letter of Credit.......................... 34
(h) Guarantor Defaults...................................... 34
(i) Security Documents..................................... 35
8.02 Remedies...................................................... 35
8.03 Rights Not Exclusive.......................................... 35
ARTICLE IX THE AGENT............................................... 35
9.01 Appointment and Authorization................................. 35
9.02 Delegation of Duties.......................................... 36
9.03 Liability of Agent............................................ 36
9.04 Reliance by Agent............................................. 37
9.05 Notice of Default............................................. 37
9.06 Credit Decision............................................... 37
9.07 Indemnification of Agent...................................... 38
9.08 Agent in Individual Capacity.................................. 39
9.09 Successor Agent............................................... 39
9.10 Collateral Matters............................................ 39
ARTICLE X MISCELLANEOUS........................................... 40
10.01 Amendments and Waivers....................................... 40
10.02 Notices...................................................... 41
10.03 No Waiver; Cumulative Remedies............................... 42
10.04 Costs, Expenses and Certain Fees............................. 42
10.05 Indemnity.................................................... 43
10.06 Marshalling; Payments Set Aside.............................. 43
10.07 Successors and Assigns....................................... 43
10.08 Assignments, Participations, etc............................. 44
10.09 Set-off...................................................... 46
10.10 Notification of Addresses, Lending Offices, Etc.............. 47
10.11 Counterparts................................................. 47
10.12 Severability................................................. 47
10.13 Time......................................................... 47
10.14 Governing Law and Jurisdiction............................... 47
10.15 Waiver of Jury Trial......................................... 47
10.16 Entire Agreement............................................. 48
10.17 Interpretation............................................... 48
10.18 Limitation on Agent's Liability.............................. 48
SCHEDULES
SCHEDULE I - NOTICE ADDRESSES AND COMMITMENTS OF BANKS
SCHEDULE II - LIST OF COMPANY ACCOUNTS HOLDING METRA
RELATED FUNDS
SCHEDULE III- LIMITATIONS ON LIENS AND OTHER MATTERS
EXHIBITS
EXHIBIT A - FORM OF NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF DISBURSEMENT REQUEST
EXHIBIT C - FORM OF GUARANTY
EXHIBIT D - FORM OF SECURITY AGREEMENT
EXHIBIT E-1 - FORM OF OPINION OF INTERNAL COUNSEL
EXHIBIT E-2A- FORM OF OPINION OF JONES DAY
EXHIBIT E-2B- FORM OF LEASEHOLD MORTGAGE OPINION OF JONES DAY
EXHIBIT E-3 - FORM OF OPINION OF HAWLEY TROXELL
EXHIBIT F - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT G - FORM OF LEASEHOLD MORTGAGE
EXHIBIT H - APPROVED BUDGET
EXHIBIT I - FORM OF METRA PAYMENT INSTRUCTION LETTER AND
ACKNOWLEDGEMENT OF RECEIPT
EXHIBIT J - FORM OF METRA CONSENT LETTER
EXHIBIT K - FORM OF MONTHLY RAIL CAR REPORT
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement is entered into as of July 31,
1995, among Morrison Knudsen Corporation, an Ohio corporation (the "COMPANY"),
the several financial institutions parties to this Agreement (collectively, the
"BANKS"; individually, a "Bank"), and Bank of America National Trust and
Savings Association, as agent for the Banks (the "AGENT").
PRELIMINARY STATEMENT
Prior to the date hereof the Company, the Agent and certain of the
Banks entered into that certain Standby Letter of Credit Reimbursement Agreement
dated as of August 4, 1992, as amended by that certain Waiver and Amendment to
Credit Agreement dated as of December 22, 1992, by that certain Waiver and
Second Amendment to Standby Letter of Credit and Reimbursement Agreement dated
as of August 9, 1994, by that certain Third Amendment to Standby Letter of
Credit and Reimbursement Agreement dated as of December 28, 1994 and by that
certain Fourth Amendment to Standby Letter of Credit and Reimbursement Agreement
dated as of July 21, 1995, and as further modified by those certain Waivers to
Standby Letter of Credit and Reimbursement Agreement dated as of August 6, 1993
and as of March 31, 1994 (as so amended and modified, the "REIMBURSEMENT
AGREEMENT").
Pursuant to the Reimbursement Agreement, Bank of America National
Trust and Savings Association, in its capacity as issuing bank, issued a letter
of credit (as amended to the date hereof, the "LETTER OF CREDIT") for the
benefit of Metra (as defined herein) and for the account of the Company, which
Letter of Credit is in the form of Exhibit 2.01 to the Reimbursement Agreement.
Certain defaults have occurred and are continuing under the
Reimbursement Agreement.
The Company has requested that the Banks provide revolving credit
to the Company on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
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ARTICLE I.
DEFINITIONS
1.01 DEFINED TERMS. In addition to the terms defined elsewhere in
this Agreement, the following terms have the following meanings:
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of voting
securities, by contract or otherwise. Without limitation, any director,
executive officer or beneficial owner of 5% or more of the equity of a
Person shall for the purposes of this Agreement, be deemed to control the
other Person.
"AGENT" means Bank of America National Trust and Savings
Association in its capacity as agent for the Banks hereunder and under
certain of the Related Documents, and any successor agent.
"AGENT'S PAYMENT OFFICE" means the address for payments set forth
on Schedule I hereto in relation to the Agent.
"AGENT-RELATED PERSONS" has the meaning specified in Section
9.03.
"AGGREGATE COMMITMENT" means the combined Commitments of the
Banks in an amount equal to Fifteen Million Dollars ($15,000,000).
"AGREEMENT" means this Revolving Credit Agreement, as amended,
supplemented or modified from time to time.
"AMENDED AND RESTATED BRIDGE LOAN AGREEMENT" means the Amended
and Restated Credit Agreement dated as of the date hereof and entered
into among the Company, the Guarantor, certain financial institutions,
Mellon Bank, N.A., as administrative agent, and BofA and Mellon Bank,
N.A., as co-agents.
"APPROVED BUDGET" shall mean a weekly budget prepared by the
Company which lists by line-item category the costs and expenses
anticipated to be incurred, and income and other funding anticipated to
be received (including payments by Metra under the Contract), in each
case by the Company in respect of the performance of its duties and
obligations under the Contract for each week from July 1, 1995 through
September 30, 1995, which budget shall be attached hereto as
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EXHIBIT H, together with any amendments or supplements thereto agreed to
in writing by the Majority Banks.
"ASSIGNEE" has the meaning specified in Section 10.08.
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified in Section
10.08(a).
"BANK AFFILIATE" means a Person engaged primarily in the business
of commercial banking and that is a Subsidiary of a Bank or of a Person
of which a Bank is a Subsidiary, which Person has combined capital and
surplus in excess of $200,000,000 or the equivalent in other currencies.
"BANKS" has the meaning given to it in the first paragraph of
this Agreement and shall include each Assignee under an Assignment and
Acceptance delivered pursuant to Section 10.08(a) hereof.
"BOFA" means Bank of America National Trust and Savings
Association, a national banking association.
"BONDING COMPANY" means Fidelity and Deposit Company of Maryland
and Colonial American Casualty and Surety Company.
"BORROWING" means a borrowing of Loans on a given date.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco are
authorized or required by law to close.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
regarding capital adequacy, of any bank or of any corporation controlling
a bank.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a
Person or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, is classified as a capital
lease.
"LOAN PROCEEDS ACCOUNT" has the meaning given to it in Section
2.14.
"CLOSING DATE" means the date on which all conditions precedent
set forth in Section 4.01 are satisfied or waived.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"COLLATERAL" means all property of the Company in which a
security interest is being granted to the Agent on behalf of the Agent
and the Banks pursuant to the Security Agreement.
"COLLATERAL INTERCREDITOR AGREEMENT" means that certain
Intercreditor and Subordination Agreement (Transit Division Asset Pool)
dated as of the date hereof among Bonding Company, Mellon Bank, N.A., as
agent on behalf of certain groups of lenders, and the Agent.
"COMMITMENT" means, for each Bank, the commitment of such Bank to
make Loans to the Company in an amount as set forth as the "Commitment"
for such Bank on Schedule I hereto for such Bank.
"COMMITMENT PERCENTAGE" means, as to any Bank, the percentage
equivalent of such Bank's Commitment divided by the Aggregate
Commitments.
"COMPANY" means Morrison Knudsen Corporation, an Ohio
corporation.
"CONSOLIDATED" when used with respect to any of the terms defined
herein, refers to such terms as reflected in a consolidation of the
accounts or other items of the Company or the Guarantor and of the
accounts or other items of the Company's or the Guarantor's Subsidiaries,
if any, in conformity with GAAP.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or
other entity the accounts of which would be Consolidated in accordance
with GAAP with those of the Company or the Guarantor in its Consolidated
financial statements if such statements were prepared as of such date;
PROVIDED, that any Consolidated Subsidiary which ceases to be a
Consolidated Subsidiary solely because it is classified as a discontinued
operation shall be deemed to be a Consolidated Subsidiary so long as it
remains a Subsidiary.
"CONTRACT" has the meaning given to it in Section 6.02.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or
any of its property is bound.
"DEFAULT" means any event which, with the giving of notice, the
lapse of time, or both, would constitute an Event of Default.
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"DISBURSEMENT REQUEST" has the meaning given to it in Section
2.03(b).
"DOCUMENTS" includes any and all instruments, documents,
agreements, certificates and other writings, however evidenced.
"DOLLARS" and "$" means lawful money of the United States.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having combined
capital and surplus of at least $200,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, having combined capital and
surplus of at least $200,000,000, or the equivalent in other currencies,
provided that such bank is acting through a branch or agency located in
the United States; or (c) a Bank Affiliate.
"EVENT OF DEFAULT" means any of the events specified in Section
8.01.
"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.
"FORM 4224" has the meaning given to it in Section 3.01(f)(i).
"FORM 1001" has the meaning given to it in Section 3.01(f)(i).
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such other entity
as may be in general use by significant segments of the U.S. accounting
5
profession, which are applicable to the circumstances as of the date of
determination.
"GLOBAL RESTRUCTURING" means the transaction contemplated by that
certain Final Term Sheet for Morrison Knudsen Global Restructure,
including the Interim Financing Transaction and the T-Co Transaction.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, and any corporation or other entity owned
or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
"GUARANTOR" means Morrison Knudsen Corporation, a Delaware
corporation.
"GUARANTY" has the meaning given to it in Section 2.11.
"GUARANTY OBLIGATIONS" of a Person means, without duplication, all
obligations and liabilities of such Person, absolute or contingent, due or
to become due, now existing or hereafter arising, under: (i) any guaranty
or other instrument, document or agreement whereby such Person becomes or
is a guarantor or surety of, or otherwise becomes or is 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 (ii) any agreement to purchase stock of, to make any other
equity investment in, or to make advances to, any other Person;
EXCLUDING, HOWEVER, (x) the endorsement, in the ordinary course of
collection, of instruments payable to it or its order, and (y) any
guaranty of performance entered into in the ordinary course of business
and not involving any Lien on any asset of the Guarantor or any of its
Subsidiaries.
"INCREMENTAL L/C REDUCTION AMOUNT" means, on any date, the sum of
the amounts by which the amount available to be drawn by Metra under the
Letter of Credit has been reduced pursuant to the delivery by Metra of
reduction certificates in the form of Exhibit B to the Letter of Credit
from and after July 1, 1995 to such date.
"INDEBTEDNESS" of any Person means, on a consolidated basis and
without duplication:
(i) any obligation of such Person for borrowed money,
including, without limitation, (a) any
6
obligation of such Person evidenced by bonds, debentures, notes or
other similar debt instruments, (b) any Indebtedness guaranteed by
such Person and any other Guaranty Obligations of such Person, and
(c) any obligation for borrowed money which is non-recourse to such
Person but which is secured by a Lien on any asset of such Person
(limited, however, to the lesser of: (x) the amount of the debt
secured, and (y) the greater of fair market or book value of the
assets subject to the Lien);
(ii) any obligation of such Person for the deferred purchase
price of any property or services, except Trade Accounts Payable;
(iii) any Capital Lease Obligations of such Person and
obligations of such Person under any Rate Contract;
(iv) any reimbursement obligation of such Person with respect
to any letter of credit, whether such reimbursement obligation is
absolute or contingent, matured or unmatured; and
(v) any Indebtedness of any third party secured by a Lien on
any asset of such Person, whether or not such Indebtedness is
assumed by such Person (limited, however, to the lesser of: (x) the
amount of the debt secured, and (y) the greater of fair market or
book value of the assets subject to such Lien).
For all purposes of this definition:
(a) the Indebtedness shall include a portion of the Indebtedness
of any partnership or joint venture in which such Person is a general
partner or a joint venturer equal to a ratable share of such Indebtedness
based on respective percentage ownership or equity interests of such
Person and other general partners or joint venturers;
(b) in the instance of non-recourse debt of a partnership or joint
venture in which such Person is a general partner or joint venturer, the
portion of such debt included in Indebtedness shall be limited to the
lesser of (i) the ratable share described in (a) above, and (ii) such
Person's total equity interest (whether paid in capital, partnership
contribution, capital surplus or partnership profits) in such partnership
or joint venture; and
(c) as used in this definition, references to such Person shall
include the Consolidated Subsidiaries of such Person.
"INDEMNIFIED PERSON" has the meaning specified in subsection
10.05.
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"INDEMNIFIED LIABILITIES" has the meaning specified in subsection
10.05.
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors or
other, similar arrangement; in each case (a) and (b) under U.S. Federal,
State or foreign law.
"INTERIM FINANCING TRANSACTION" means the transaction contemplated
by the Global Restructuring pursuant to which the Banks and other lenders
and financial institutions commit to provide funding to the Company
concurrently with commitment by the Banks to make the Loans hereunder.
"LEASEHOLD MORTGAGE" has the meaning given to it in Section 2.13.
"LENDING OFFICE" means, with respect to any Bank, the office or
offices of the Bank specified as its "Lending Office" opposite its name on
Schedule I, or such other office or offices of the Bank as it may from
time to time specify to the Company and the Agent.
"LETTER OF CREDIT" has the meaning given to it in the recitals
hereto.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease Obligation, any financing lease having
substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which
such lien relates as debtor, under the UCC or any comparable law) and any
contingent or other agreement to provide any of the foregoing.
"LOAN" AND "LOANS" each has the meaning given to it in Section
2.01.
"MAJORITY BANKS" means at any time Banks holding 66-2/3% of the
outstanding Loans, or if no Loans are outstanding, Banks holding at least
66-2/3% of the Commitments.
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"MATERIAL ADVERSE EFFECT" means (i) a material adverse change in,
or a material adverse effect upon, any of (a) the operations, business,
properties, condition (financial or otherwise) or prospects of the Company
or the Company and its Consolidated Subsidiaries taken as a whole; (b) the
ability of the Company to perform under any Related Document; or (c) the
legality, validity, binding effect or enforceability of any Related
Document; or (ii) a material adverse change in, or a material adverse
effect upon, any of (a) the operations, business, properties, condition
(financial or otherwise) or prospects of the Guarantor or the Guarantor
and its Consolidated Subsidiaries taken as a whole; (b) the ability of the
Guarantor to perform under any Related Document; or (c) the legality,
validity, binding effect or enforceability of any Related Document.
"MATURITY DATE" means September 1, 1995.
"METRA" means the Commuter Rail Division of the Regional
Transportation Authority, an Illinois corporation.
"METRA PAYMENT ACCOUNT" has the meaning given to it in Section
2.14 hereof.
"METRA PAYMENT INSTRUCTION LETTER" has the meaning given to it in
Section 2.14 hereof.
"MORTGAGE" means any deed of trust, mortgage or other document
creating a Lien on real property or any interest in real property.
"NOTE" has the meaning given to it in Section 2.05.
"NOTICE OF BORROWING" has the meaning given to it in Section 2.03.
"NOTICE OFFICE" mean the office of the Agent listed on Schedule I
hereto, or such other office as the Agent shall designate in writing as
such to the other parties hereto.
"OBLIGATIONS" means all Indebtedness, advances, debts,
liabilities, obligations, covenants and duties owing by the Company to any
Bank, the Agent, or any other Person required to be paid or indemnified
under any Related Document, of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other instrument,
arising under this Agreement or under any other Related Document, whether
or not for the payment of money, whether arising by reason of an extension
of credit, loan, guaranty, indemnification or in any other manner, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and
however acquired and including any obligations accruing after the
commencement of an Insolvency Proceeding
9
against the Company or the Guarantor; PROVIDED, HOWEVER, that the
Obligations shall not include Indebtedness, obligations or other
liabilities to the Agent, the Banks or any other Person arising under the
Reimbursement Agreement, the Amended and Restated Bridge Loan Agreement or
the T-Co Credit Agreement.
"OECD" has the meaning given to it in the definition of the term
"Eligible Assignee."
"OPERATING ACCOUNT" has the meaning given to it in Section 2.14
hereof.
"ORDINARY COURSE OF BUSINESS" means, in respect of any transaction
involving the Guarantor or any Subsidiary of the Guarantor, the ordinary
course of such Person's business, substantially as conducted by any such
Person prior to or as of the Closing Date, and undertaken by such Person
in good faith and not for purposes of evading any covenant or restriction
in any Related Document.
"OTHER TAXES" has the meaning specified in subsection 3.01(b).
"OVERRIDE AGREEMENT" means that certain Override Agreement dated
as of the date hereof among the Company, the Guarantor, the financial
institutions parties thereto and Mellon Bank, N.A., as agent.
"PARTICIPANT" has the meaning specified in subsection 10.08(d).
"PERMITTED LIENS" has the meaning given to it in Section 7.01.
"PERSON" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
"RATE CONTRACT" means interest rate and currency swap agreements,
cap, floor and collar agreements, interest rate insurance, currency spot
and forward contracts and other agreements or arrangements designed to
provide protection against fluctuations in interest or currency exchange
rates.
"REFERENCE RATE" means the higher of:
(a) the rate of interest publicly announced from time to time by
BofA in San Francisco, California, as its reference rate. It is a rate
set by BofA based upon various factors including BofA's costs and desired
return, general economic conditions and other factors, and is used as a
10
reference point for pricing some loans, which may be priced at, above, or
below such announced rate; and
(b) one-half percent per annum above the Federal Funds 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.
"REIMBURSEMENT AGREEMENT" has the meaning given to it in the
recitals hereof.
"RELATED DOCUMENT" means any of this Agreement, each Note, each
Security Document or any document or agreement relating to this Agreement,
any Note, or any Security Document; provided that such term shall exclude
the Collateral Intercreditor Agreement, the Reimbursement Agreement, the
Override Agreement, the Amended and Restated Bridge Loan Agreement and the
T-Co Credit Agreement.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator
or of a Governmental Authority, in each case applicable to or binding upon
the Person or any of its property or to which the Person or any of its
assets is subject.
"RESPONSIBLE OFFICER" means, for the Company or the Guarantor, the
Chief Executive Officer or the President of the Company or the Guarantor,
as appropriate, and with respect to financial matters, the Chief Financial
Officer or the Treasurer of the Company or the Guarantor, as appropriate.
"SECURITY AGREEMENT" has the meaning given to it in Section 2.12.
"SECURITY DOCUMENTS" means the Guaranty, the Security Agreement,
the Leasehold Mortgage, any financing statements filed pursuant to the
Security Agreement, and all other documents, instruments and agreements
now or hereafter executed or delivered pursuant thereto or in connection
therewith.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50%
of the voting stock or other equity interests is owned or controlled
directly or indirectly by the Person, or one or more of the Subsidiaries
of the Person, or a combination thereof.
"T-CO CREDIT AGREEMENT" means the Interim T-Co Credit Agreement
dated as of the date hereof and entered into among
11
the Company, the Guarantor, certain financial institutions and Mellon
Bank, N.A., as agent.
"T-CO TRANSACTION" means the proposed transaction by which the
Company will spin off certain of its assets and liabilities relating the
Company's transit division (including the Company's obligations under the
Contract and all of the Collateral) into a separate operating company
which will continue to be a wholly-owned Subsidiary of the Company or the
Guarantor.
"TAXES" has the meaning specified in subsection 3.01(a).
"TRADE ACCOUNTS PAYABLE" of a Person means trade accounts payable
of such Person with a maturity of not greater than 90 days incurred in the
ordinary course of such Person's business.
"TRANSFEREE" has the meaning specified in subsection 10.08(e).
"UCC" means the Uniform Commercial Code as in effect in any
jurisdiction.
"UNITED STATES" and "U.S." each means the United States of
America.
1.02 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified herein or therein, all terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.
(b) All accounting terms not expressly defined herein shall be
construed, except where the context otherwise requires, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
schedule and exhibit references are to this Agreement unless otherwise
specified. The meaning of defined terms shall be equally applicable to the
singular and plural forms of the defined terms. The term "including" is not
limiting and means "including without limitation".
(d) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding," and the word "through" means "to
and including."
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(e) References to agreements and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are not
prohibited by the terms of any Related Document.
(f) References to statutes or regulations are to be construed as
including all statutory and regulatory provisions consolidating, amending or
replacing the statute or regulation.
(g) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.01 THE LOANS. Subject to and upon the terms and conditions set forth
herein, each Bank severally agrees, at any time and from time to time on and
after the Closing Date and prior to the Maturity Date, to make a loan or loans
(each a "LOAN" and collectively, the "LOANS") to the Company, which Loans
may be prepaid and reborrowed in accordance with the provisions hereof;
PROVIDED, HOWEVER, that (i) the aggregate principal amount of Loans
outstanding from any Bank shall at no time exceed the Commitment of such Bank
and (ii) the aggregate principal amount of Loans outstanding from all Banks
shall at no time exceed the then current Incremental L/C Reduction Amount.
Unless repaid in full prior thereto, all Loans shall be due and payable on the
Maturity Date.
2.02 MINIMUM AMOUNT OF EACH BORROWING. The aggregate principal amount
of each Borrowing shall not be less than $500,000.
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2.03 NOTICE OF BORROWING AND DISBURSEMENT REQUEST.
(a) Whenever the Company desires to make a Borrowing hereunder it
shall give the Agent at its Notice Office at least one Business Day's prior
irrevocable notice of each Loan to be made hereunder, PROVIDED THAT any such
notice shall be deemed to have been given on a certain day only if given before
11:00 a.m. (San Francisco time) on such day. Each such notice (each, a "NOTICE
OF BORROWING") (i) shall be irrevocable, (ii) shall be given by the Company in
the form of EXHIBIT B-1, appropriately completed to specify the date of such
Borrowing (which shall be a Business Day) and the aggregate principal amount of
the Loans to be made pursuant to such Borrowing (which amount, when added to the
aggregate principal amount of Loans then outstanding, shall not exceed the
Incremental L/C Reduction Amount as of the date of such Borrowing), and (iii)
shall be delivered no earlier than one calendar week after the previously
delivered Notice of Borrowing. The Agent shall promptly give each Bank notice
of such proposed Borrowing, of such Bank's Commitment Percentage thereof and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
(b) Whenever the Company desires a disbursement of amounts from
the Loan Proceeds Account to the Operating Account hereunder it shall give the
Agent at its Notice Office irrevocable notice of each such disbursement to be
made hereunder, PROVIDED THAT any such notice shall be deemed to have been
given on a certain day only if given before 11:00 a.m. (San Francisco time) on
such day. Each such notice (each, a "DISBURSEMENT REQUEST") (i) shall be
irrevocable, (ii) shall be given by the Company in the form of EXHIBIT B-2,
appropriately completed to specify the date of such disbursement (which shall be
a Business Day) and the aggregate principal amount of such disbursement, and
(iii) shall be delivered no more often than twice in any calendar week. The
Agent shall promptly give each Bank notice of such disbursement or proposed
disbursement.
2.04 DISBURSEMENT OF FUNDS.
(a) No later than 11:00 a.m. (San Francisco time) on the date
specified in each Notice of Borrowing, each Bank will make available, through
such Bank's Lending Office, its Commitment Percentage of each Borrowing
requested to be made on such date, in Dollars and in immediately available funds
at the Agent's Payment Office and, upon receipt thereof, the Agent will deposit
the aggregate of the amounts made available by the Banks into the Loan Proceeds
Account. Unless the Agent shall have been notified by any Bank prior to the
date of Borrowing that such Bank does not intend to make available to the Agent
such Bank's portion of any Borrowing to be made on such date, the Agent may
assume that such Bank has made such amount available to the Agent on such date
of Borrowing and the Agent may, in reliance upon such assumption, make available
to the Loan Proceeds Account a corresponding amount. If such corresponding
amount is not in
14
fact made available to the Agent by such Bank, the Agent shall be entitled to
recover such corresponding amount from such Bank on demand. If such Bank does
not pay such corresponding amount forthwith upon the Agent's demand therefor,
the Agent may either (i) withdraw any such corresponding amount from the Loan
Proceeds Account or (ii) notify the Company and the Company shall immediately
pay such corresponding amount to the Agent. The Agent shall also be entitled to
recover on demand from such Bank or the Company interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Agent to the Company until the date such corresponding amount
is recovered by the Agent, at a rate per annum equal to (a) if recovered from
such Bank, the Federal Funds Rate and (b) if recovered from the Company, the
Reference Rate for the first two Business Days after demand by the Agent and
thereafter at a rate per annum for overdue payments as provided in Section
2.08(c) hereof. Nothing in this Section 2.04 shall be deemed to relieve any
Bank of its obligation to make Loans hereunder or to prejudice any rights which
the Company may have against any Bank as a result of any failure by such Bank to
make Loans hereunder.
(b) No later than 2:00 p.m. (San Francisco time) on the date
specified in each Disbursement Request and provided the applicable conditions to
a disbursement have been satisfied, the Agent will transfer the amounts
requested in the Disbursement Request from the Loan Proceeds Account to the
Operating Account. The Agent shall have no duty to or liability to confirm the
information contained in any Disbursement Request and its sole duty thereunder
shall be to disburse the amounts specified in a Disbursement Request conforming
on its face to the requirements of Section 2.03(b) to the Operating Account.
2.05 NOTES.
(a) The Company's obligation to pay the principal of, and interest
on, each of the Loans made by each Bank shall be evidenced by a promissory note
issued to such Bank (the "Note") duly executed and delivered by the Company
substantially in the form of Exhibit A hereto with blanks appropriately
completed in conformity herewith.
(b) The Note issued to each Bank shall (i) be payable to the order
of such Bank and be dated the Closing Date, (ii) be in a stated principal amount
equal to such Bank's Commitment and be payable in the principal amount of the
Loans evidenced thereby, (iii) mature, with respect to each Loan evidenced
thereby, on the Maturity Date, (iv) be subject to prepayments as provided in
Section 2.09, (v) bear interest as provided in Section 2.07 and (vi) be entitled
to the benefits of the Security Documents.
(c) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect
15
thereof (which records shall, absent manifest error, be final and conclusive and
binding on all parties hereto) and will prior to any transfer of its Note
endorse on the reverse side thereof the outstanding principal amount of Loans
evidenced thereby. Failure to make any such notation shall not affect the
Company's obligations in respect of such Loans.
2.06 PRO RATA BORROWINGS. All Borrowings of Loans under this Agreement
shall be made by the Banks pro rata on the basis of their Commitment Percentage.
It is understood that no Bank shall be responsible for any default by any other
Bank of its obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder regardless of
the failure of any other Bank to make its Loans hereunder.
2.07 COMPUTATION OF FEES AND INTEREST.
(a) All computations of fees (other than as provided in Section
2.15) and interest under this Agreement shall be made on the basis of a 360-day
year and actual days elapsed, which results in more interest being paid than if
computed on the basis of a 365-day year. Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof. Interest on each Loan shall be computed at and
accrue at the Reference Rate from and including the date on which each Loan is
made available to the Loan Proceeds Account.
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Company and the Banks in the absence of manifest error. The Agent will, at the
request of the Company or any Bank, deliver to the Company or the Bank, as the
case may be, a statement showing the quotations used by the Agent in determining
any interest rate.
(c) Accrued interest shall be payable (i) monthly in arrears on the
last Business Day of each calendar month, (ii) on the date of any repayment of
principal that reduces the outstanding principal amount of the Loans to zero,
(iii) at maturity (whether by acceleration or otherwise) of the Loans and (iv)
after such maturity, on demand.
2.08 PAYMENTS BY THE COMPANY.
(a) All payments (including prepayments) to be made by the Company
on account of principal, interest, fees, and other sums due hereunder shall be
made without set-off or counterclaim and shall be made to the Agent, for the
account of the Banks, except as otherwise provided in this Agreement, at the
Agent's Payment Office, in Dollars and in immediately available funds no later
than 11:00 a.m. (San Francisco time) on the date when due. In the case of
principal, interest, fees and other amounts which
16
are paid to the Agent for the account or benefit of all of the Banks the Agent
will promptly distribute to each Bank its Commitment Percentage of such
principal, interest, fees, or other amounts, in like funds as received. Any
payment which is received by the Agent later than 11:00 a.m. (San Francisco
time) shall be deemed to have been received on the immediately succeeding
Business Day.
(b) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) In the event that any principal, interest (to the extent
permitted by law), fee, or any other amount due hereunder from the Company is
not paid on the date when due, such principal, interest, fee or other amount
shall thereafter bear interest at the Reference Rate plus 2%.
(d) All payments (including prepayments), other than regularly
scheduled interest payments, on the Loans or on any of the other Obligations
shall be made to the Agent for application as follows (regardless of how the
Company may treat such payment for purposes of its own accounting): first, to
then due and outstanding fees, expenses or other charges of the Agent under this
Agreement or any of the other Related Documents to the extent payable by the
Company; second, to then due interest on the Loans accrued and unpaid prior to
the date such funds are received by the Banks and third, to the principal
balance of the Loans.
2.09 PREPAYMENTS.
(a) The Company shall have the right to prepay the Loans in whole
or in part without penalty, premium or fee from time to time on the following
terms and conditions: (i) the Company shall give the Agent at its Notice Office
at least one Business Day's prior notice of its intent to prepay the Loans and
the amount of such prepayment, which notice the Agent shall promptly transmit to
each of the Banks, PROVIDED THAT for the purposes of this clause (i) any
notice received after 11:00 a.m. (San Francisco time) shall not be deemed
delivered until the following Business Day; (ii) each partial prepayment of
Loans shall be in an aggregate principal amount of at least $1,000,000 and
$1,000,000 multiples in excess thereof and (iii) each prepayment in respect of
any Loans shall be applied as provided in Section 2.08.
(b) On any day on which amounts are deposited into the Metra
Payment Account, the Agent shall apply all such amounts in accordance with
Section 2.08(d); PROVIDED THAT (i) any amounts deposited into the Metra
Payment Account after 11:00 a.m. (San Francisco time) shall not be deemed
deposited until the following
17
Business Day; and (ii) each prepayment in respect of any Loans shall be applied
as provided in Section 2.08.
2.10 SHARING OF PAYMENTS, ETC. If, other than as expressly
contemplated herein, any Bank shall obtain on account of its Note or this
Agreement any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) in excess of its Commitment Percentage of
payments on account of its Note or this Agreement obtained by all the Banks,
such Bank shall forthwith (a) notify the Agent of such fact, and (b) purchase
from the other Banks such participations in the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other Bank shall repay to the purchasing Bank
the purchase price paid thereto together with an amount equal to such paying
Bank's Commitment Percentage (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so recovered from
the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.10 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section 10.09)
with respect to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. Each Bank involved
in the purchase of a participation under this Section 2.10 or in a refund under
this Section 2.10 shall notify the Agent of the details of such purchase or
refund. The Agent shall keep records (which shall be conclusive and binding in
the absence of manifest error), of participations purchased pursuant to this
Section 2.10 and shall in each case notify the Banks following any such
purchases.
2.11 GUARANTY. All obligations of the Company under this Agreement and
all other Related Documents shall be unconditionally guaranteed by the Guarantor
pursuant to a guaranty and agreement (the "GUARANTY") in the form of EXHIBIT
C attached hereto.
2.12 SECURITY AGREEMENT. All obligations of the Company under this
Agreement and all other Related Documents shall be secured by a lien and
security interest in the Collateral pursuant to a security agreement (the
"SECURITY AGREEMENT") in the form of EXHIBIT D attached hereto.
2.13 LEASEHOLD MORTGAGE. All obligations of the Company under this
Agreement and all other Related Documents shall be secured by a lien and
security interest in certain real property of the Company located in Chicago,
Illinois pursuant to a Leasehold Mortgage, Assignment of Rents, Security
Agreement and
18
Fixture Filing (the "LEASEHOLD MORTGAGE") in the form of EXHIBIT G attached
hereto.
2.14 LOAN PROCEEDS ACCOUNT AND METRA PAYMENT ACCOUNT. The Company has
instructed the Agent to establish at the Agent's Payment Office (i) an account
into which all Borrowings will be deposited (the "LOAN PROCEEDS ACCOUNT") and
which will be maintained by the Agent in the name of the Company, and (ii) a
deposit account owned and controlled by the Agent into which Metra will be
irrevocably instructed, pursuant to the payment instruction letter in the form
of EXHIBIT I hereof (the "METRA PAYMENT INSTRUCTION LETTER"), to make all
payments or into which the Agent will deposit all amounts received by it from
Metra, in each case in respect of the Contract (the "METRA PAYMENT ACCOUNT").
The Company has established or will establish an operating account of the
Company with another financial institution into which all disbursements from the
Loan Proceeds Account will be transferred and from which all disbursements in
respect of the Company's performance of the Contract will initially be made
(such account, the "OPERATING ACCOUNT"). The Company authorizes the Agent to
disclose any information as to withdrawals, deposits or other activity in the
Loan Proceeds Account to the Banks. The Company acknowledges and agrees that
its sole and exclusive access to the Loan Proceeds Account shall be pursuant to
disbursements requested under Section 2.03(b) hereof.
2.15 AGENT ADMINISTRATION FEE. The Company shall pay a non-refundable
administration fee to the Agent for Agent's own account in an amount equal to
$30,000 for each calendar month from the Closing Date to the date upon which
this Agreement and the Commitments are terminated and the Loans have been repaid
in full. Such fee in respect of July and August, 1995 shall be payable in
advance on the Closing Date, and thereafter shall be payable in advance on the
first Business Day of each month.
2.16 ADDITIONAL SECURITY. All obligations of the Company under this
Agreement and all other Related Documents shall be secured by the liens and
security interests granted pursuant to the "Security Documents" (as defined in
the Override Agreement) including the "Ship Mortgage" (as defined in the
Override Agreement.)
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Subject to subsection 3.01(g), any and all payments by the
Company to each Bank or the Agent under this Agreement or any other Related
Document shall be made free and clear of, and without deduction or withholding
for, any and all
19
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each Bank
and the Agent, such taxes (including income taxes or franchise taxes) as are
imposed on or measured by each Bank's or the Agent's net income by the
jurisdiction under the laws of which such Bank or the Agent, as the case may be,
is organized or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "TAXES").
(b) In addition, the Company shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Related Documents (hereinafter referred to as "OTHER TAXES").
(c) Subject to subsection 3.01(g), the Company shall indemnify and
hold harmless each Bank and the Agent for the full amount of Taxes or Other
Taxes (including without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.01) paid by the Bank or the
Agent and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Bank or the Agent
makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Bank or the Agent, then, subject to subsection 3.01(g):
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 3.01) such Bank or the Agent,
as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
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(f) Each Bank which is a foreign person (i.e., a person other than
a United States person for United States Federal income tax purposes) agrees
that:
(i) it shall, no later than the Closing Date (or, in the case of a
Bank which becomes a party hereto pursuant to Section 10.08 after the
Closing Date, the date upon which the Bank becomes a party hereto) deliver
to the Agent (and the Agent shall deliver a copy thereof to the Company)
two accurate and complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("FORM 4224"), or two accurate and
complete signed originals of Internal Revenue Service Form 1001 or any
successor thereto ("FORM 1001"), as appropriate, in each case indicating
that the Bank is on the date of delivery thereof entitled to receive
payment of principal, interest and fees under this Agreement free from
withholding of United States Federal income tax;
(ii) if at any time such Bank makes any changes necessitating a new
Form 4224 or Form 1001, it shall with reasonable promptness deliver to the
Agent (and the Agent shall deliver a copy thereof to the Company) in
replacement for, or in addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals of Form 4224, or two
accurate and complete signed originals of Form 1001, as appropriate, in
each case indicating that such Bank is on the date of delivery thereof
entitled to receive payment of reimbursements, interest, fees, and other
sums under this Agreement free from withholding of United States Federal
income tax;
(iii) it shall (to the extent it may lawfully do so), before or
promptly after the occurrence of any event (including the passing of time
but excluding any event mentioned in (ii) above) requiring a change or
renewal in the most recent Form 4224 or Form 1001 previously delivered by
such Bank, deliver to the Agent (and the Agent shall deliver a copy
thereof to the Company) two accurate and complete original signed copies
of Form 4224 or Form 1001 in replacement for the forms previously
delivered by such Bank; and
(iv) it shall, promptly upon the Agent's or the Company's
reasonable request to that effect, deliver to the Agent (and the Agent
shall deliver a copy thereof to the Company) such other forms or similar
documentation as may be required from time to time by any applicable law,
treaty, rule or regulation in order to establish such Bank's tax status
for withholding purposes.
(g) The Company will not be required to pay any additional amounts
in respect of United States Federal income tax pursuant to subsection 3.01(d)(i)
to any Bank for the account of any Lending Office of such Bank:
21
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its obligations
under subsection 3.01(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Agent for delivery to
the Company a Form 4224 in respect of such Lending Office pursuant to
subsection 3.01(f), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States Federal income
tax in respect of payments by the Company hereunder for the account of
such Lending Office for any reason other than a change in United States
law or regulations or in the official interpretation of such law or
regulations by any Governmental Authority charged with the interpretation
or administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Agent for delivery to
the Company a Form 1001 in respect of such Lending Office pursuant to
Section 3.01(f), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States Federal income
tax in respect of payments by the Company hereunder for the account of
such Lending Office for any reason other than a change in United States
law or regulations or any applicable tax treaty or regulations or in the
official interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form 1001.
(h) If, at any time, the Agent or the Company requests any Bank to
deliver any forms or other documentation pursuant to subsection 3.01(f)(iv),
then the Company shall, on demand of such Bank through the Agent, reimburse such
Bank for any costs and expenses (including expenses of outside legal counsel and
the allocated costs of in-house counsel) reasonably incurred by such Bank in the
preparation or delivery of such forms or other documentation.
(i) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to subsection 3.01(d), then such Bank shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
(j) If the Internal Revenue Service or any other Federal, state,
municipal or other authority within the United States (including any agency or
subdivision thereof) asserts a claim that the Agent did not properly withhold
tax from amounts
22
paid to or for the account of a Bank (because the appropriate tax form was not
delivered, was not properly executed, because the Bank was not entitled to
exemption or reduction of withholding tax, or for any other reason), then that
Bank shall indemnify the Agent (to the extent the Agent has not been reimbursed
therefor by the Company) for all amounts paid directly or indirectly by the
Agent as tax or otherwise, including penalties and interest (and any taxes
imposed by any jurisdiction on the amounts payable tb the Agent hereunder),
together with all costs, expenses, and attorneys' fees (including the allocated
costs for in-house legal services).
3.02 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Bank shall determine that, due to either (i) the
introduction of or any change in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to such Bank of agreeing to issue, amend, maintain,
fund, or participate in this Agreement, any Loans, or its Commitment hereunder,
then the Company shall be liable for, and shall from time to time, upon demand
therefor by such Bank (with a copy of such demand to the Agent), pay to the
Agent for the account of such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
after the date hereof of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by such Bank (or its Lending Office) or any
corporation controlling such Bank, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and such Bank's desired
return on capital) determines that the amount of such capital is increased as a
consequence of its obligation under this Agreement, then such Bank shall
promptly notify the Company of such determination and, upon demand of such Bank
(and such Bank shall deliver a copy of such demand to the Agent), the Company
shall immediately pay to such Bank, from time to time as specified by such Bank,
additional amounts sufficient to compensate the Bank for such increase.
3.03 CERTIFICATES OF BANKS. Any Bank claiming reimbursement or
compensation pursuant to this Article III shall deliver to the Company (with a
copy to the Agent) a certificate
23
setting forth in reasonable detail the amount payable to the Bank hereunder and
such certificate shall be conclusive and binding on the Company in the absence
of manifest error.
3.04 SURVIVAL. The agreements and obligations of the Company contained
in this Article III and of the Banks contained in Section 3.01(j) shall survive
the payment in full of all other obligations of the Company under this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 CONDITIONS TO THE EFFECTIVENESS OF THIS AGREEMENT. The
effectiveness of this Agreement is subject to the condition that the Agent shall
have received on or before the Closing Date all of the following, in form and
substance satisfactory to the Agent, its counsel, and each Bank, and in
sufficient copies for each Bank:
(a) AGREEMENT. This Agreement executed by the Company and each
of the Banks;
(b) NOTES. A Note dated the Closing Date, executed by the
Company and payable to each Bank in the principal amount of such Bank's
Commitment hereunder.
(c) GUARANTY AND SECURITY AGREEMENT. The Guaranty shall have
been executed and delivered by the Guarantor and the Security Agreement shall
have been executed and delivered by the Company;
(d) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the boards of directors of the
Company and the Guarantor approving and authorizing the execution,
delivery and performance by such Person of this Agreement, the Guaranty,
and the other Related Documents to be delivered hereunder by such Person
and authorizing the incurring of Indebtedness in connection with this
Agreement and the Notes, certified as of the Closing Date by the Secretary
or an Assistant Secretary of the Company and of the Guarantor; and
(ii) A certificate of the Secretary or Assistant Secretary of each
of the Company, the Guarantor, and each Subsidiary of the Company
certifying the names and true signatures of the officers of the such
Person authorized to execute and deliver, as applicable, this Agreement,
and all other Related Documents to be delivered hereunder to be executed
by such Person;
24
(e) ARTICLES OF INCORPORATION; BYLAWS AND GOOD STANDING. Each
of the following documents:
(i) the articles or certificate of incorporation of each of the
Company and the Guarantor as in effect on the Closing Date, certified by
the Secretary of State of the State of incorporation of the Company or the
Guarantor, as appropriate, as of a recent date and by the Secretary or
Assistant Secretary of each of the Company and the Guarantor as of the
Closing Date and the bylaws of the Company and the Guarantor as in effect
on the Closing Date, certified by the Secretary or Assistant Secretary of
the Company or the Guarantor, as appropriate, as of the Closing Date; and
(ii) a good standing certificate as of a recent date for Company
from the Secretary of State of the State of Ohio and good standing
certificates as of a recent date from the States of California, Delaware,
Idaho, Illinois, and New York evidencing the qualification of the Company
to do business as a foreign corporation in such States, together with
bring-down certificates of all such certificates by telex or telecopy,
dated the Closing Date, and a good standing certificate as of a recent
date for the Guarantor from the Secretary of State of the State of
Delaware and good standing certificate as of a recent date from the State
of Idaho evidencing the qualification of the Guarantor to do business as a
foreign corporation in State of Idaho, together with bring-down
certificates of all such certificates by telex or telecopy, dated the
Closing Date, and certified copies of certificates dated not greater than
one year prior to the Closing Date evidencing the qualification and the
Company or the Guarantor, as appropriate, to do business as a foreign
corporation in each other state where the Company or the Guarantor is
qualified to do business as a foreign corporation;
(f) LEGAL OPINIONS. An opinion of internal counsel to the
Company and the Guarantor addressed to the Agent and the Banks, substantially in
the form of EXHIBIT E-1, opinions of Jones, Day, Reavis & Pogue, special
counsel to the Company and the Guarantor, addressed to the Agent and the Banks,
substantially in the form of EXHIBIT E-2A and EXHIBIT E-2B and an opinion of
Hawley Troxell Ennis & Hawley, special counsel to the Company and the Guarantor,
substantially in the form of EXHIBIT E-3;
(g) PAYMENT OF FEES. The Company shall have paid (i) all
accrued and unpaid costs, fees and expenses (including, without limitation,
legal fees and expenses) to the Closing Date, including any arising under
Sections 3.01 and 10.04 and (ii) to the Agent, a non-refundable administrative
fee as provided in Section 2.15 in an amount equal to $60,000;
25
(h) CERTIFICATE. A certificate signed by a Responsible Officer
of the Company, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and as of such
date; and
(ii) no Default or Event of Default exists or would result from the
transactions contemplated by this Agreement;
(i) APPROVED BUDGET. A copy of the Approved Budget;
(j) FINANCING STATEMENTS. Acknowledgement copies or other
evidence of submission for filing of proper financing statements (Form UCC-1)
under the UCC of each jurisdiction listed in the schedules to the Security
Agreement to perfect the security interest created in the Collateral pursuant to
the Security Agreement;
(k) METRA SIDE LETTER. A letter agreement in the form of
EXHIBIT J hereto executed and delivered by the Company, the Agent, Bonding
Company, the several other parties thereto and Metra;
(l) LANDLORD'S AGREEMENT. The lessor of the Hornell, New York
leasehold interest of the Company shall have executed and delivered a Landlord's
Agreement granting to the Agent certain rights in respect of Collateral located
on the premises constituting the leasehold interest and agreeing to such other
matters as shall have been requested by the Agent or any Bank;
(m) LANDLORD'S AGREEMENT. The lessor of the Chicago, Cook
County, Illinois leasehold interest of the Company shall have executed and
delivered a Landlord's Agreement granting to the Agent certain rights in respect
of Collateral located on the premises constituting the leasehold interest,
consenting to the recording of the Leasehold Mortgage and agreeing to such other
matters as shall have been requested by the Agent or any Bank;
(n) RECORDING OF LEASEHOLD MORTGAGE. The Leasehold Mortgage
shall have been recorded in the official records of Cook County, Illinois;
(o) SUBORDINATION AGREEMENT. Evidence that a Subordination
Agreement, in form and substance satisfactory to the Banks, executed and
delivered by the Agent, Bonding Company and Mellon Bank, N.A. as collateral
agent (the "COLLATERAL AGENT") under that certain Amended and Restated
Collateral Agent Agreement and Mortgage Trust dated as of July 31, 1995 among
the Company and certain other parties, shall have been recorded in the official
records of Cook County Illinois, pursuant to which the lien and security
interest of the Collateral Agent in the Chicago, Illinois leasehold property
shall be subordinated to the
26
lien and security interest created in favor of the Agent under the Leasehold
Mortgage;
(p) INTERCREDITOR ARRANGEMENTS. The Collateral Intercreditor
Agreement shall have been executed by all parties thereto and shall have become
effective and the certain other intercreditor agreements between or among the
Company, the Guarantor, the Collateral Agent, Bonding Company and certain other
creditors of the Company, the Guarantor and the Guarantor's Subsidiaries in
respect of certain other collateral of the Company, the Guarantor and the
Guarantor's Subsidiaries shall have been executed and delivered by the parties
thereto and shall have become effective;
(q) GLOBAL RESTRUCTURING. Each of the Override Agreement, the
Amended and Restated Bridge Loan Agreement, the T-Co Credit Agreement and each
of the other agreements contemplated by the Interim Financing Transaction shall
have closed concurrently herewith and each of the lenders or other institutions
agreeing to provide advances or financial accommodations to the Company pursuant
to the Interim Financing Transaction shall have committed to do so, subject only
to the conditions set forth in the documentation relating thereto and each of
the Company, the Guarantor, such lenders and Fidelity and Deposit Company of
Maryland shall have executed a term sheet for the T-Co Transaction;
(r) METRA PAYMENT INSTRUCTION LETTER AND ACKNOWLEDGEMENT OF
RECEIPT. The Metra Payment Instruction Letter executed by the Company,
directing Metra to make all payment in respect of the Contract directly to the
Agent, together with the Acknowledgement of Receipt executed by Metra, pursuant
to which Metra acknowledges receipt of the Metra Payment Instruction Letter; and
(s) OTHER DOCUMENTS. Such other approvals, opinions or
documents as any Bank may reasonably request.
4.02 CONDITIONS TO EACH BORROWING OR DISBURSEMENT. The obligation of
each Bank to make any Loan or the obligation of the Agent to make any
disbursement to the Operating Account is subject in each instance to the
satisfaction or waiver of the following conditions:
(a) NOTICE OF BORROWING OR DISBURSEMENT REQUEST. The Agent
shall have received a Notice of Borrowing or Disbursement Request, as the case
may be (and schedules thereto) from the Company in accordance with the terms and
conditions set forth in Section 2.03 hereof;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Company contained in Article V shall
be true and correct in all material respects on and as of the date of such Loan
or disbursement with the same
27
effect as if made on and as of such date of Loan or disbursement; and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Loan or disbursement.
Each Notice of Borrowing or Disbursement Request delivered to the Agent shall
constitute a representation and warranty by the Company hereunder as of the date
of each such Notice of Borrowing or Disbursement Request and as of the date upon
which the Borrowing is being requested that the conditions in Section 4.02 have
been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 CORPORATE EXISTENCE AND POWER. The Company, the Guarantor and
each of their respective Consolidated Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver and perform its obligations under the Related Documents;
(c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in Section 5.01(c) or Section 5.01(d), to the
extent that the failure to do so could not have a Material Adverse Effect, and
except to the extent that all of the following are true: (i) each Consolidated
Subsidiary for which the representation and warranty in either Section 5.01(a)
or (b) above are not true is a Consolidated Subsidiary of the Guarantor other
than the Company, has net worth less than $500,000, and had annual revenue for
its most recent fiscal year less than $1,000,000, (ii) the Consolidated
Subsidiaries for which the representation and warranty in either Section 5.01(a)
or (b) above are not true have net worth less than $5,000,000 in the aggregate,
and had revenue, in their most recent fiscal year, less than $10,000,000 in the
aggregate, and (iii) the failure of
28
the representation and warranty in Section 5.01(a) or (b) above to be true does
not have a Material Adverse Effect.
5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Company, the Guarantor and their respective
Consolidated Subsidiaries of this Agreement and any other Related Document to
which such Person is party, have been duly authorized by all necessary corporate
action and do not and will not:
(a) contravene the terms of that Person's certificate of
incorporation, bylaws or other organization document;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any indenture, agreement, lease, instrument,
Contractual Obligation, injunction, order, decree or undertaking to which such
Person is a party except as set forth in Schedule III; or
(c) violate any Requirement of Law.
5.03 GOVERNMENTAL AUTHORIZATION. Except for those that have been
obtained as of the date hereof and as set forth in Schedule III, no approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority is necessary or required in connection with the
execution, delivery, performance or enforcement against the Company, the
Guarantor or any of their respective Consolidated Subsidiaries of the Agreement
or any other Related Document or any other instrument or agreement required
hereunder to be made by the Company, the Guarantor, or any of their respective
Consolidated Subsidiaries.
5.04 BINDING EFFECT. This Agreement and each other Related Document to
which the Company, the Guarantor or any of their respective Consolidated
Subsidiaries is a party constitute the legal, valid and binding obligations of
the Company, the Guarantor, and such Consolidated Subsidiaries to the extent any
such Person is a party thereto, enforceable against such Person in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
5.05 NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of obligations by the Company under this Agreement or any
other Related Document.
5.06 USE OF PROCEEDS. Proceeds of each Loan hereunder shall be used
solely as provided in Section 6.02 hereof.
5.07 REGULATED ENTITIES. None of the Company, the Guarantor, any
Person controlling the Company or the Guarantor,
29
or any Consolidated Subsidiaries of the Company or the Guarantor, is (a) an
"Investment Company" within the meaning of the Investment Company Act of 1940;
or (b) subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code or any other Federal or state statute or regulation limiting its
ability to incur Indebtedness.
5.08 THE CONTRACT.
(a) The Contract has been executed and delivered by the Company,
and the execution, delivery and performance by the Company, the Guarantor and
their respective Consolidated Subsidiaries of the Contract and any related
documents and agreements to which such Person is party, have been duly
authorized by all necessary corporate action and do not and will not:
(i) contravene the terms of that Person's certificate of
incorporation, bylaws or other organization document;
(ii) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any indenture, agreement, lease,
instrument, Contractual Obligation, injunction, order, decree or
undertaking to which such Person is a party; or
(iii) violate any Requirement of Law.
(b) Except as has been made or obtained prior to the date hereof,
no approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority is necessary or required in
connection with the execution, delivery, performance or enforcement against the
Company, the Guarantor or any of their respective Consolidated Subsidiaries of
the Contract or any other documents and agreements related thereto.
(c) The Contract and the other documents and agreements related
thereto to which the Company, the Guarantor or any of their respective
Consolidated Subsidiaries is a party are in full force and effect and constitute
the legal, valid and binding obligations of the Company, the Guarantor and such
Consolidated Subsidiaries to the extent any such Person is a party thereto,
enforceable against such Person in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
5.09 FULL DISCLOSURE. None of the representations or warranties made
by the Company, the Guarantor, or any of their respective Consolidated
Subsidiaries in the Related Documents as of the date of such representations and
warranties, and none of
30
the statements contained in each exhibit, report, statement or certificate
furnished by or on behalf of the Company, the Guarantor, or any of their
respective Consolidated Subsidiaries in connection with the Related Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading.
5.10 COLLATERAL. The Collateral (as defined in the Security Agreement)
constitutes all of the personal property (including goods, inventory, equipment,
work in process, general intangibles and other personal property assets) of the
Company held or used or required to be held or used by the Company in connection
with the performance of its duties and obligations under the Contract. The
granting of the lien and security interest in the Collateral to the Agent on
behalf of itself and the Banks pursuant to the Security Documents does not
violate any Requirement of Law.
5.11 SECURITY DOCUMENTS. (a) The Leasehold Mortgage creates in favor
of the Agent for the benefit of the Agent and the Banks a valid mortgage upon
the Chicago, Cook County, Illinois leasehold property. Upon the filing of
Leasehold Mortgage with the Cook County Recorder's Office and upon the release
or subordination of the mortgage in favor of the Collateral Agent on behalf of
certain other lenders in respect of the leasehold interest encumbered thereby
(which release or subordination shall occur prior to or on the Closing Date),
the Agent's mortgage in the leasehold interest encumbered thereby shall be a
first priority mortgage in such leasehold interest.
(b) The Security Agreement creates in favor of the Agent for the benefit
of the Agent and the Banks a valid security interest in the Collateral. Upon
the filing of financing statements at the offices listed in the schedules to the
Security Agreement and upon the effectiveness of the Collateral Intercreditor
Agreement which subordinates the security interests granted to certain other
Persons in respect of the Collateral (which effectiveness shall occur prior to
or on the Closing Date), the Agent's security interest in the Collateral shall
be, subject only to the Collateral Intercreditor Agreement, a first priority,
perfected security interest in all such assets which are capable of being
perfected by the filing of a financing statement under applicable law, subject
only to Permitted Liens.
5.12 BANK ACCOUNTS. Other than the Loan Proceeds Account, the
Operating Account and the other accounts listed on Schedule II hereto, the
Company does not maintain any bank, deposit or other account from which the
Company disburses funds in respect of its performance of the Contract.
ARTICLE VI
31
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank shall have any
Commitment hereunder, or any Loan is outstanding or other amount due hereunder
shall remain unpaid, unless the Majority Banks waive compliance in writing:
6.01 NOTICES. The Company shall promptly notify the Agent and each Bank
of the occurrence of any Default or Event of Default and of the occurrence or
existence of any event or circumstance that foreseeably will become a Default or
Event of Default.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of the Company or the Guarantor, as
appropriate, setting forth details of the occurrence referred to therein and
stating what action the Company or the Guarantor, as appropriate, proposes to
take with respect thereto.
6.02 USE OF PROCEEDS. The Company shall use the proceeds of each Loan
solely (i) for the purpose set forth in the schedule attached to the applicable
Notice of Borrowing, and (ii) to fund the Company's performance of its
obligations under the Proposal/Contract (Rev. 1/24/92), between Metra and the
Company, and all exhibits, schedules, amendments and supplements thereto,
awarded March 9, 1992 (the "CONTRACT").
6.03 FULL DISCLOSURE. The Company shall ensure that all written
information, exhibits and reports furnished to the Agent or the Banks do not and
will not contain any untrue statement of a material fact and do not and will not
omit to state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which made,
and will promptly disclose to the Agent and the Banks and correct any defect or
error that may be discovered therein or in any Related Document or in the
execution, acknowledgement or recordation thereof.
6.04 CONTRACT INFORMATION. The Company shall provide to the Agent and
each Bank as soon as the same become available but not later than 15 days after
the end of each month, a current schedule of Metra rail cars delivered,
payments, and Letter of Credit status substantially in the form of EXHIBIT K
hereto, together with a schedule of the type and car number of each Metra rail
car delivered during the month.
6.05 PERFORMANCE OF CONTRACT. The Company shall perform in a timely
manner all of its duties and obligations under the Contract and shall not
abandon, reject or otherwise fail to comply with the Contract.
6.06 ACCESS TO FINANCIAL ADVISORS AND OTHER PROFESSIONALS. The Company
shall grant to the financial advisors and other
32
professionals of the Agent or the Banks access to its books and records
sufficient to such financial advisors or other professionals to monitor
performance by the Company with the Contract and the Approved Budget and to
verify the use of proceeds of Borrowings and disbursements.
6.07 FURTHER ASSURANCES. The Company shall, at its sole cost and
expense, execute and deliver to the Agent for the benefit of the Agent and the
Banks all such further documents, instruments and agreements and agree to
perform all such other acts which may be required in the opinion of the Agent or
any Bank to enable the Agent and the Banks to exercise and enforce their
respective rights as the secured parties or beneficiaries under the Security
Documents. To the extent permitted by applicable law, the Company hereby
authorizes the Agent on behalf of the Agent and the Banks to file financing
statements and continuation statements with respect to the security interests
granted under the Security Documents in favor of the Agent for the benefit of
the Agent and the Banks and to execute such financing statements and
continuation statements on behalf of the Company.
ARTICLE VII
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank
shall have any Commitment hereunder, or any Loan is outstanding or any amount
payable hereunder shall remain unpaid, unless the Majority Banks waive
compliance in writing:
7.01 LIMITATION ON LIENS ON COLLATERAL. The Company shall not directly
or indirectly make, create, incur, assume or suffer to exist any Lien upon or
with respect to any part of the Collateral, whether now owned or hereafter
acquired, other than the following ("PERMITTED LIENS"):
(a) any Lien created under any Related Document;
(b) Liens in favor of any Person to the extent that such Liens are
expressly subject to the priority and subordination agreements set forth in the
Collateral Intercreditor Agreement; and
(c) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the Ordinary Course
of Business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss
of any material asset.
33
7.02 BANK ACCOUNTS. Other than the Loan Proceeds Account, the
Operating Account and the accounts listed on Schedule II hereto, the Company
shall not establish or maintain any bank, deposit or operating account from
which the Company makes disbursements or funds its operations in respect of its
performance of the Contract (including general administrative expenses of the
Company which have been fairly allocated to the Contract). The Company shall
not use or expend any funds in the Loan Proceeds Account or the Operating
Account for any purpose other than to fund the performance of the Contract
(including general administrative expenses of the Company which have been fairly
allocated to the Contract).
ARTICLE VIII
EVENTS OF DEFAULT
8.01 EVENT OF DEFAULT. Any of the following events shall constitute an
"Event of Default":
(a) NON-PAYMENT. The Company fails to pay when due any amount
of principal of any Loan or any interest, fees or any other amount payable
hereunder or pursuant to any other Related Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by the Company or any of its Consolidated Subsidiaries or the Guarantor herein,
in any Related Document or which is contained in any certificate, document or
financial or other statement furnished at any time under this Agreement, or in
or under any Related Document, shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) OTHER DEFAULTS. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any Related Document; or
(d) EVENT OF DEFAULT UNDER THE OVERRIDE AGREEMENT. An Event of
Default (as defined in the Override Agreement) shall have occurred and be
continuing or the Collateral Agent (as defined in the Override Agreement) shall
have instituted any enforcement proceedings against the Guarantor or any of its
Subsidiaries or any of their assets in connection with the Indebtedness to which
the Override Agreement relates; or
(e) BANKRUPTCY OR INSOLVENCY. The Company or any of its
Subsidiaries (i) becomes insolvent or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course substantially
as it is conducted on the Closing Date; (iii) commences any Insolvency
Proceeding or files any petition or answer in any Insolvency
34
Proceeding; (iv) acquiesces in the appointment of a receiver, trustee, custodian
or liquidator for itself or a substantial portion of its property, assets or
business or effects a plan or other arrangement with its creditors; (v) admits
the material allegations of a petition filed against it in any Insolvency
Proceeding, or (vi) takes any action to effectuate any of the foregoing; or
(f) INVOLUNTARY PROCEEDINGS. Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Company's or any of its
Subsidiaries' assets and any such proceedings or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; or
(g) DRAWING UNDER LETTER OF CREDIT. Metra shall have presented
a demand for payment on the Letter of Credit; or
(h) GUARANTOR DEFAULTS. The Guarantor shall fail in any
material respect to perform or observe any term, covenant or agreement in the
Guaranty; or any event described at paragraphs (e) or (f) shall occur with
respect to the Guarantor; or
(i) SECURITY DOCUMENTS. The Guaranty, the Security Agreement,
the Leasehold Mortgage or any other Security Document shall for any reason be
revoked or invalidated, or otherwise cease to be in full force and affect, or
the Company, the Guarantor or any other Person shall contest in any manner the
validity or enforceability thereof or deny that it has any further liability or
obligation thereunder; or the Agent shall cease to have a first priority
mortgage on the Chicago, Cook County, Illinois leasehold property or a the first
priority, perfected security interest in the Collateral, subject only to
Permitted Liens.
8.02 REMEDIES. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks, (a) declare the
Commitments of each Bank to be terminated, whereupon such Commitments shall
forthwith be terminated; (b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon and all other amounts
payable hereunder to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Company; or (c) exercise all rights and remedies available to it
under this Agreement or the other Related Documents or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in clause
(e) or (f) of Section 8.01 above or upon the occurrence with respect to the
Guarantor of any event described in paragraphs (e) or (f) of Section 8.01 (in
the case of
35
such reference to clause (f) upon the expiration of the 60 day period mentioned
herein), the Commitment of each Bank shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without further
act of the Agent or any Bank.
8.03 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement
and the other Related Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement.
ARTICLE IX
THE AGENT
9.01 APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints, designates and authorizes the Agent to enter into the Related
Documents to which it is a party and to take such action on its behalf under the
provisions of this Agreement and each other Related Document and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Related 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 Related Document,
the Agent shall not have any duties or responsibilities, except those expressly
set forth herein, or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Related 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 or any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
9.02 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Related Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 LIABILITY OF AGENT. None of the Agent, its Affiliates, or any of
their respective officers, directors, employees, agents, or attorneys-in-fact
(collectively, the "AGENT-RELATED PERSONS") shall (i) be liable for any action
taken
36
or omitted to be taken by any of them under or in connection with this Agreement
or any Related Document or the transaction contemplated thereby (except for its
own gross negligence or willful misconduct) or (ii) be responsible in any manner
to any of the Banks 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 Related 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 Related Document, or the value of the Collateral or any other collateral,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Related Document, or for any failure of the Company
or any other party to any Related Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any
Bank 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
Related Document, or to inspect the properties, books or records of the Company,
the Guarantor, or any of its Subsidiaries.
9.04 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Related Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Related Document in accordance with a request or consent of the
Majority Banks and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.01, each Bank which authorizes the Agent to release its
signature page to this Agreement shall be deemed to have consented to, approved
of, accepted or to be satisfied with, each of the conditions required to be
consented to, approved of, accepted by or satisfactory to, such Bank.
37
9.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees payable
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be requested by the
Majority Banks in accordance with Article VIII; PROVIDED, HOWEVER, that
unless and until the Agent shall have 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 interests of the Banks.
9.06 CREDIT DECISION. Each Bank expressly 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, the Guarantor, and their Subsidiaries and Affiliates shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company, the Guarantor, and their Subsidiaries and
Affiliates and all applicable bank regulatory laws relating to the transaction
contemplated hereby and made its own decision to enter into this Agreement and
extend credit to the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon the Agent 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 Related 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
creditworthiness of the Company and the Guarantor. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Company or the Guarantor which may come into the possession of any of the
Agent-Related Persons.
9.07 INDEMNIFICATION OF AGENT. The Banks shall indemnify upon demand
the Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), ratably
according to the
38
respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of the Obligations) be imposed
on, incurred by, or asserted against any such Person in any way relating to or
arising out of this Agreement or any Related Document or any document
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any such Person
under or in connection with any of the foregoing; PROVIDED, HOWEVER, that no
Bank shall be liable for the payment to the Agent-Related Persons of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Agent promptly upon demand for its
ratable share of any costs or out-of-pocket expenses (including fees and
expenses of counsel and the allocated cost of in-house 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 Related 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
obligations of the Banks under this Section 9.07 shall survive the payment of
all Obligations hereunder.
9.08 AGENT IN INDIVIDUAL CAPACITY. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from 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 Banks.
The Banks 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 to such Affiliate) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans and
Commitment, BofA shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not the Agent, and
the terms "Bank" and "Banks" shall include BofA in its individual capacity.
9.09 SUCCESSOR AGENT. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent shall resign as Agent under this Agreement, the Majority Banks, with the
consent of the Company (which consent shall not be unreasonably withheld), shall
appoint from among the Banks a successor agent for the Banks. If no
39
successor agent is appointed prior to the effective date of the resignation of
the Agent, the Agent shall appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's rights, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement.
9.10 COLLATERAL MATTERS.
(a) The Agent is authorized on behalf of all the Banks, without
the necessity of any notice to or further consent from the Banks, from time to
time to take any action with respect to any collateral or the security
agreements and other documents relating to such collateral which may be
necessary to perfect and maintain perfected the security interest in and Liens
upon such collateral.
(b) The Banks irrevocably authorize the Agent, at its option and
in its discretion, to release any Lien granted to or held by the Agent upon any
collateral for the Obligations (i) upon termination of the Commitments and
payment in full of all the Obligations payable under this Agreement and under
any other Related Document; (ii) constituting assets sold or to be sold or
disposed of as part of or in connection with any disposition permitted
hereunder; (iii) constituting assets in which the Company or any Subsidiary of
the Company owned no interest at the time the Lien was granted or at any time
thereafter; (iv) constituting assets leased to the Company, the Guarantor, or
any Subsidiary of the Guarantor under a lease which has expired or been
terminated in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (v) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness evidenced thereby has been paid in
full; or (vi) if approved, authorized or ratified in writing by the Majority
Banks as provided in subsection 10.01(f). Upon request by the Agent at any
time, the Banks will confirm in writing the Agent's authority to release
particular types or items of collateral pursuant to this subsection 9.10(b).
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Related Document and no consent with
respect to any departure by the Company
40
therefrom, shall be effective unless the same shall be in writing and signed by
the Majority Banks, and then such waiver shall be effective only in the specific
instance and for the specific purpose for which given; PROVIDED, HOWEVER,
that no such waiver, amendment, or consent shall, unless in writing and signed
by all the Banks do any of the following:
(a) increase the Commitment of any Bank or subject any Bank to any
additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due hereunder or under any Related Document;
(c) reduce the principal of, or the rate of interest of any Loan,
or of any fees or other amounts payable hereunder or under any Related Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for the Banks or
any of them to take any action hereunder;
(e) amend this Section 10.01 or Section 2.10;
(f) release the Guarantor from its obligations under Section 2 of
the Guaranty or any amendment of Section 2 of the Guaranty; or
(g) extend the Maturity Date beyond September 1, 1995;
and, PROVIDED FURTHER, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks, or all Banks
if so required by this Agreement, affect the rights or duties of the Agent under
this Agreement or any other Related Document.
10.02 NOTICES.
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context expressly otherwise
provides, telegraphic, telex, facsimile transmission or cable communication) and
mailed, telegraphed, telexed or delivered, (i) if to the Company, to its address
specified on Schedule I hereof, (ii) if to any Bank, to its Lending Office, and
(iii) if to the Agent, to its Notice Office; or, as to the Company, to such
other address as shall be designated by the Company in a written notice to the
other parties, and as to each other party, at such other address as shall be
designated by such party in a written notice to all other parties. All notices,
requests, and other communications provided for hereunder shall, if sent by
facsimile, telegraphic, or telexed transmission, be confirmed in writing (other
than by
41
facsimile, telegraphic, or telex transmission) sent by overnight delivery.
(b) All such notices and communications shall, when transmitted by
overnight delivery, telegraphed, telecopied by facsimile, telexed or cabled, be
effective when delivered for overnight delivery or to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, or if delivered, upon delivery, except that notices
pursuant to Article II or VIII shall not be effective until actually received by
the Agent.
(c) The Company acknowledges and agrees that the agreement of the
Agent and the Banks in Article II herein to receive certain notices by telephone
and facsimile is solely for the convenience and at the request of the Company.
The Agent and Banks shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice and the
Agent and the Banks shall not have any liability to the Company or other Person
on account of any action taken or not taken by the Agent and the Banks in
reliance upon such telephonic or facsimile notice. The obligation of the
Company to repay the Obligations shall not be affected in any way or to any
extent by any failure by the Agent and the Banks to receive written confirmation
of any telephonic or facsimile notice or the receipt by the Agent and the Banks
of a confirmation which is at variance with the terms understood by the Agent
and the Banks to be contained in the telephonic or facsimile notice.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
10.04 COSTS, EXPENSES AND CERTAIN FEES. The Company shall, whether or
not the transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Agent on demand for all costs and
expenses incurred in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to, this Agreement, any Related Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the reasonable costs and
expenses of counsel to the Agent (and the allocated cost of internal counsel)
with respect thereto;
(b) in the event the Agent takes any action in connection with the
enforcement or preservation of any rights (including in connection with any
Insolvency Proceeding,
42
"workout" or restructuring regarding the Company, this Agreement or any Related
Document), pay or reimburse the Agent on demand for all costs and expenses
incurred by them in connection with such enforcement or preservation of any
rights (including in connection with any Insolvency Proceeding, "workout" or
restructuring regarding the Company, this Agreement or any Related Document)
under this Agreement, any Related Document, and any such other documents,
including costs, fees and out-of-pocket expenses of counsel (and the allocated
cost of internal counsel) to the Agent; and
(c) pay or reimburse the Agent on demand for all appraisal
(including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of such
internal services), search and filing fees, incurred or sustained by the Agent
in connection with the matters referred to under paragraphs (a) and (b) above,
but, in the case of an appraisal, only to the extent it was reasonable to obtain
such appraisal.
10.05 INDEMNITY. The Company shall pay, indemnify, and hold each Bank,
the Agent and each of their respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an "INDEMNIFIED PERSON") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses or disbursements (including
fees and expenses of counsel and allocated costs of internal counsel) of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration (including any action taken or not taken by an
Indemnified Person pursuant to Section 10.02 hereof) of this Agreement and any
other Related Documents or the transactions contemplated herein, and with
respect to any investigation, litigation or proceeding related to this Agreement
or any Related Document or the use hereof or thereof (whether or not any
Indemnified Person is a party thereto) (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"); PROVIDED, that the Company shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities arising from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this section shall survive payment of all
other Obligations.
10.06 MARSHALLING; PAYMENTS SET ASIDE. Neither the Agent nor the Banks
shall be under any obligation to marshall any assets in favor of the Company or
any other Person or against or in payment of any or all of the Obligations. To
the extent that the Company makes a payment or payments to the Agent or the
Banks, or the Agent or the Banks enforce their Liens or exercise their rights of
set-off, and such payment or payments or the proceeds of such enforcement or
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party in connection with any Insolvency
43
Proceeding, or otherwise, then to the extent of such recovery the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or set-off had not occurred.
10.07 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Bank.
10.08 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Prior to the Maturity Date, the Commitments, Loan and
obligations of any Bank may not be assigned. From and after the Maturity Date,
any Bank may, with the written consent of the Agent, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
the Agent shall be required in connection with any assignment and delegation by
a Bank to a Bank Affiliate of such Bank) (each an "ASSIGNEE") all or any
ratable part of all of the Commitments, Loans and the other rights and
obligations of such Bank hereunder, in a minimum amount of $1,000,000;
PROVIDED, HOWEVER, that (i) the Company and may continue to deal solely and
directly with such Bank in connection with the interest so assigned to an
Assignee until (A) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee
shall have been given to the Company and the Agent by such Bank and the
Assignee; and (B) such Bank and its Assignee shall have delivered to the Company
and the Agent an Assignment and Acceptance in the form of EXHIBIT F (an
"ASSIGNMENT AND ACCEPTANCE") and (ii) until such time as the Reimbursement
Agreement shall have been terminated, no such assignment shall be effective
unless concurrently with the delivery of such assignment, such Bank shall have
assigned the same proportion of its Commitment and L\C Borrowings (each as
defined in the Reimbursement Agreement) and other rights and obligations under
the Reimbursement Agreement to such Assignee pursuant to the terms of the
Reimbursement Agreement.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received an executed Assignment and Acceptance, payment of the
processing fee and when applicable, the applicable assignment and acceptance to
be delivered under the Reimbursement Agreement, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Bank under the Related Documents, and (ii) the
assignor Bank shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance,
44
relinquish its rights and be released from its obligations under the Related
Documents.
(c) Immediately upon each Assignee making its payment under the
Assignment and Acceptance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitment of the
assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks
(a "PARTICIPANT") participating interests in the Commitment and Loans of that
Bank and the other interests of that Bank (the "ORIGINATING BANK") hereunder
and under the other Related Documents; PROVIDED, HOWEVER, that (i) the
Originating Bank's obligations under this Agreement shall remain unchanged, (ii)
the Originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to deal solely and
directly with the Originating Bank in connection with the Originating Bank's
rights and obligations under this Agreement and the other Related Documents, and
(iv) no Bank shall transfer or grant any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Related Document, except to
the extent such amendment, consent or waiver would require unanimous consent as
described in the first PROVISO to Section 10.01. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Related Documents, and all amounts payable by the Company
hereunder shall be determined as if such Bank had not sold such participation;
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all non-public information
provided to it by the Company or any Subsidiary of the Company, or by the Agent
on such Company's or Subsidiary's behalf, in connection with this Agreement or
any other Related Document, and neither it nor any of its Affiliates shall use
any such information for any purpose or in any manner other than pursuant to the
terms contemplated by this Agreement; except to the extent such information (i)
was or becomes generally available to the public other than as a result of a
disclosure by the Bank, or (ii) was or becomes available on a non-confidential
basis from a source other than the Company, provided that such source is not
bound by a confidentiality
45
agreement with the Company known to the Bank; PROVIDED FURTHER, HOWEVER,
that any Bank may disclose such information, (a) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such authority; (b) pursuant
to subpoena or other court process; (c) when required to do so in accordance
with the provisions of any applicable Requirement of Law; (d) to such Bank's
independent auditors and other professional advisors; and (e) to any other
financial institution who has advanced funds to or made other financial
accommodations on behalf of the Company. Notwithstanding the foregoing, the
Company authorizes each Bank to disclose to any Participant or Assignee (each, a
"TRANSFEREE") and to any prospective Transferee, such financial and other
information in such Bank's possession concerning the Guarantor or its
Subsidiaries which has been delivered to the Agent or the Banks pursuant to this
Agreement or which has been delivered to the Agent or the Banks by the Company
in connection with the Banks' credit evaluation of the Company; PROVIDED that,
unless otherwise agreed by the Company, such Transferee agrees in writing to
such Bank to keep such information confidential to the same extent required of
the Banks hereunder.
10.09 SET-OFF. (a) In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Company against any and all
obligations of the Company now or hereafter existing under this Agreement or any
other Related Document irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Related Document and although
such obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made by
such Bank; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section 10.09 are in addition to the other rights and remedies
(including without limitation, other rights of set-off) which the Bank may have.
Notwithstanding anything else to the contrary herein or in any Related Document,
the Agent expressly agrees that it will not exercise set-off rights in respect
of this Agreement or any Related Document other than in respect of the
Collateral.
(b) Notwithstanding the foregoing subsection (a), at any time that
the Loans or any other Obligation shall be secured by real property located in
California, no Bank shall exercise a right of setoff, banker's lien or
counterclaim or take any court or administrative action or institute any
proceeding to enforce any provision of this agreement or any Note that is not
taken by
46
the Majority Banks or approved in writing by the Majority Banks if such setoff
or action or proceeding would or might (pursuant to Sections 580a, 580b, 580d
and 726 of the California Code of Civil Procedure or Section 2924 of the
California Civil Code, if applicable, or otherwise) affect or impair the
validity, priority, or enforceability of the liens granted to the Agent pursuant
to the Security Documents or the enforceability of the Notes and other
Obligations hereunder, and any attempted exercise by any Bank of any such right
without obtaining such consent of the Majority Banks shall be null and void.
This subsection (b) shall be solely for the benefit of each of the Banks
hereunder.
10.10 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of its Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.11 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
10.12 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality of, enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.13 TIME. Time is of the essence as to each term or provision of
this Agreement and each of the other Related Documents.
10.14 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS. EACH OF THE
COMPANY, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
47
RELATED HERETO. THE COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.15 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE AGENT 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 RELATED 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 PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE COMPANY, THE BANKS AND THE AGENT 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 RELATED 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 RELATED DOCUMENTS
10.16 ENTIRE AGREEMENT. This Agreement, together with the other
Related Documents, embodies the entire Agreement and understanding among the
Company, the Banks and the Agent in respect of the subject matter hereof and
supersedes all prior or contemporaneous agreements and understandings of such
persons, verbal or written, relating to the subject matter hereof and thereof
except for any prior arrangements made with respect to the payment by the
Company of (or any indemnification for) any fees, costs or expenses payable to
or incurred (or to be incurred) by or on behalf of the Agent or the Banks.
10.17 INTERPRETATION. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Agent, the Banks, the Company
and other parties, and is the product of all parties hereto. Accordingly, this
Agreement and the other Related Documents shall not be construed against the
Banks or the Agent merely because of the Agent's or Banks' involvement in the
preparation of such documents and agreements.
10.18 LIMITATION ON AGENT'S LIABILITY. The Company acknowledges and
agrees that the Agent has established the Metra Payment Account and the Loan
Proceeds Account, and has agreed to transfer funds to the Operating Account, at
the request of, and as an accommodation to, the Company, and the Company agrees
that the Agent shall not be liable to the Company for any expense, claim, loss,
damage or cost (collectively, "Damages") arising out of or relating to Agent's
actions or omissions in respect of such accounts or transfers other than such
actions or omissions constituting Agent's negligence. The Company agrees that
the Agent's liabilities in respect of any such account or transfer shall be
limited to direct money Damages actually incurred by the
48
Company in an amount not exceeding the compensation for the service during the
month in which such acts or omissions occurred. In no event shall the Agent be
liable to the Company or to any other Person for any special, indirect,
exemplary or consequential damages, including but not limited to, lost profits.
49
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
MORRISON KNUDSEN CORPORATION
an Ohio corporation
By:_________________________
Title:______________________
By:_________________________
Title:______________________
S-1
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:________________________
By:_______________________
Title:_____________________
Title:____________________
By:________________________
BANK OF AMERICA NATIONAL TRUST Title:_____________________
AND SAVINGS ASSOCIATION, as a
Bank BANQUE PARIBAS
By:________________________
By:________________________
Title:_____________________
Title:_____________________
BANK OF MONTREAL By:________________________
By:________________________ Title:_____________________
Title:_____________________
CIBC, INC.
THE BANK OF NOVA SCOTIA
By:________________________
By:________________________ Title:_____________________
Title:_____________________
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By:________________________
Title:_____________________ By:________________________
Title:_____________________
THE BANK OF TOKYO, LTD.
By:________________________
Title:_____________________
By:________________________
Title:_____________________
S-2
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION LIMITED
By:________________________
By:________________________
Title:_____________________
Title:_____________________
By:________________________
THE LONG-TERM CREDIT BANK OF Title:_____________________
JAPAN, LTD., LOS ANGELES AGENCY
WESTDEUTSCHE LANDESBANK
By:________________________ GIROZENTRALE
Title:_____________________
By:________________________
SAN PAOLO BANK Title:_____________________
By:________________________
By:________________________
Title:_____________________
Title:_____________________
By:________________________
Title:_____________________
By:________________________
NATIONAL WESTMINSTER BANK PLC
By:________________________
Title:_____________________
ROYAL BANK OF CANADA
By:________________________
Title:_____________________
S-3