1
EXHIBIT 10
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$150,000,000
CREDIT AGREEMENT
among
ROADWAY SERVICES, INC.
The Several Lenders
from Time to Time Parties Hereto
and
CHEMICAL BANK,
as Agent
Dated as of March 31, 1994
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2
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . 9
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . 10
2.1 Revolving Credit Commitments . . . . . . . . . . . . . 10
2.2 Notes . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3 Procedure for Revolving Credit Borrowing . . . . . . . 10
2.4 Facility Fee . . . . . . . . . . . . . . . . . . . . . 11
2.5 Termination or Reduction of Commitments . . . . . . . 11
2.6 Optional Prepayments . . . . . . . . . . . . . . . . . 11
2.7 Conversion and Continuation Options . . . . . . . . . 12
2.8 Interest Rates and Payment Dates . . . . . . . . . . . 12
2.9 Computation of Interest and Fees . . . . . . . . . . . 13
2.10 Inability to Determine Interest Rate . . . . . . . . . 13
2.11 Pro Rata Treatment and Payments . . . . . . . . . . . 14
2.12 Illegality . . . . . . . . . . . . . . . . . . . . . . 14
2.13 Requirements of Law . . . . . . . . . . . . . . . . . 15
2.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 16
2.15 Indemnity . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 18
3.1 Financial Condition . . . . . . . . . . . . . . . . . 18
3.2 No Change . . . . . . . . . . . . . . . . . . . . . . 19
3.3 Corporate Existence; Compliance with Law . . . . . . . 19
3.4 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . 19
3.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . 19
3.6 No Material Litigation . . . . . . . . . . . . . . . . 20
3.7 No Default . . . . . . . . . . . . . . . . . . . . . . 20
3.8 Ownership of Property; Liens . . . . . . . . . . . . . 20
3.9 No Burdensome Restrictions . . . . . . . . . . . . . . 20
3.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 20
3.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 20
3.12 Investment Company Act; Other Regulations . . . . . . 21
3.13 Purpose of Loans . . . . . . . . . . . . . . . . . . . 21
3.14 Environmental Matters . . . . . . . . . . . . . . . . 21
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 21
4.1 Conditions to Initial Loans . . . . . . . . . . . . . 21
4.2 Conditions to Each Loan . . . . . . . . . . . . . . . 22
SECTION 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 23
5.1 Financial Statements . . . . . . . . . . . . . . . . . 23
5.2 Certificates; Other Information . . . . . . . . . . . 24
5.3 Payment of Obligations . . . . . . . . . . . . . . . . 24
5.4 Conduct of Business and Maintenance of
Existence . . . . . . . . . . . . . . . . . . . . . 24
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5.5 Maintenance of Property; Insurance . . . . . . . . . . 25
5.6 Inspection of Property; Books and Records;
Discussions . . . . . . . . . . . . . . . . . . . . 25
5.7 Notices . . . . . . . . . . . . . . . . . . . . . . . 25
5.8 Environmental Laws . . . . . . . . . . . . . . . . . . 25
SECTION 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 26
6.1 Maintenance of Consolidated Net Worth . . . . . . . . 26
6.2 Limitation on Liens . . . . . . . . . . . . . . . . . 26
6.3 Limitation on Fundamental Changes . . . . . . . . . . 27
6.4 Limitation on Sale of Assets . . . . . . . . . . . . . 28
6.5 Limitation on Lines of Business . . . . . . . . . . . 28
SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 8. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . 31
8.2 Delegation of Duties . . . . . . . . . . . . . . . . . 31
8.3 Exculpatory Provisions . . . . . . . . . . . . . . . . 31
8.4 Reliance by Agent . . . . . . . . . . . . . . . . . . 32
8.5 Notice of Default . . . . . . . . . . . . . . . . . . 32
8.6 Non-Reliance on Agent and Other Lenders . . . . . . . 32
8.7 Indemnification . . . . . . . . . . . . . . . . . . . 33
8.8 Agent in Its Individual Capacity . . . . . . . . . . . 33
8.9 Successor Agent . . . . . . . . . . . . . . . . . . . 34
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . 34
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . 35
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . 35
9.4 Survival of Representations and Warranties . . . . . . 35
9.5 Payment of Expenses and Taxes . . . . . . . . . . . . 36
9.6 Successors and Assigns; Participations and
Assignments . . . . . . . . . . . . . . . . . . . . 36
9.7 Adjustments . . . . . . . . . . . . . . . . . . . . . 39
9.8 Counterparts . . . . . . . . . . . . . . . . . . . . . 39
9.9 Severability . . . . . . . . . . . . . . . . . . . . . 39
9.10 Integration . . . . . . . . . . . . . . . . . . . . . 39
9.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . 40
9.12 Submission To Jurisdiction; Waivers . . . . . . . . . 40
9.13 Acknowledgements . . . . . . . . . . . . . . . . . . . 40
9.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . 41
9.15 Confidentiality . . . . . . . . . . . . . . . . . . . 41
SCHEDULES
Schedule I Commitments and Addresses for Notices
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Opinion of General Counsel to the Borrower
Exhibit C Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of March 31, 1994, among ROADWAY
SERVICES, INC., an Ohio corporation (the "BORROWER"), the several banks and
other financial institutions from time to time parties to this Agreement (the
"LENDERS") and CHEMICAL BANK, a New York banking corporation, as agent for the
Lenders hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ABR" or "ALTERNATE BASE RATE": for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greatest of (a) the Prime Rate in effect on such day (or if the
Eurodollar Rate is unavailable pursuant to subsection 2.10 or 2.12,
the Prime Rate in effect on such day minus 1%), (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. For purposes hereof: "PRIME
RATE" shall mean the rate of interest per annum publicly announced
from time to time by the Agent as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended
to be the lowest rate of interest charged by Chemical Bank in
connection with extensions of credit to debtors); "BASE CD RATE" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "THREE-MONTH SECONDARY CD RATE" shall mean,
for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day) by the Board
of Governors of the Federal Reserve System (the "BOARD") through the
public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the Agent
from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; and "FEDERAL FUNDS EFFECTIVE RATE"
shall mean, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of
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New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for the day of such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR LOANS": Loans the rate of interest applicable to which
is based upon the ABR.
"AFFILIATE": as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"AGENT": Chemical Bank, together with its affiliates, as
the arranger of the Commitments and as the agent for the Lenders under
this Agreement and the Notes.
"AGREEMENT": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"ASSIGNEE": as defined in subsection 9.6(c).
"ASSIGNMENT AND ACCEPTANCE": as defined in subsection
9.6(c).
"AVAILABLE COMMITMENT": as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Commitment over (b) the aggregate principal amount of all Loans made
by such Lender then outstanding.
"BORROWING DATE": in respect of any Loan, the date such
Loan is made.
"BUSINESS DAY": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"CAPITAL STOCK": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation)
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and any and all warrants or options to purchase any of the foregoing.
"C/D ASSESSMENT RATE": for any day as applied to any ABR
Loan, the annual assessment rate in effect on such day which is
payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the "FDIC") classified as well-
capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.3(d) (or any successor provision) to the FDIC (or
any successor) for the FDIC's (or such successor's) insuring time
deposits at offices of such institution in the United States.
"C/D RESERVE PERCENTAGE": for any day as applied to any
ABR Loan, that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) (the "Board"), for determining the
maximum reserve requirement for a Depositary Institution (as defined
in Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"CHEMICAL": Chemical Bank.
"CLOSING DATE": the date on which the conditions precedent
set forth in subsection 4.1 shall be satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT": as to any Lender, the obligation of such
Lender to make Loans to the Borrower hereunder in an aggregate
principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule I, as such amount
may be reduced from time to time in accordance with the provisions of
this Agreement.
"COMMITMENT PERCENTAGE": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall
have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Loans then outstanding constitutes
of the aggregate principal amount of the Loans then outstanding).
"COMMITMENT PERIOD": the period from and including the
date hereof to but not including the Termination Date or such earlier
date on which the Commitments shall terminate as provided herein.
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"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"CONSOLIDATED NET WORTH": at a particular date, with
respect to the Borrower, all amounts which would, in conformity with
GAAP, be included under shareholders' equity on a consolidated balance
sheet of the Borrower and its Subsidiaries as at such date.
"CONTRACTUAL OBLIGATION": as to any Person, any provision
of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or
any of its property is bound.
"DEFAULT": any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"DOLLARS" AND "$": dollars in lawful currency of the
United States of America.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as
applied to a Eurodollar Loan, the aggregate (without duplication) of
the rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
"EURODOLLAR BASE RATE": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the rate per
annum equal to the rate at which Chemical (or,
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in the case of a one-week Interest Period, the average (rounded upward
to the nearest 1/16th of 1%) of the respective rates notified to the
Agent by each of Chemical and Bank One, Akron, N.A. as the rate at
which such Lender) is offered Dollar deposits at or about 10:00 A.M.,
New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable
to which is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EVENT OF DEFAULT": any of the events specified in Section
7, PROVIDED that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"FINANCING LEASE": any lease of property, real or
personal, the obligations of the lessee in respect of which are
required in accordance with GAAP to be capitalized on a balance sheet
of the lessee.
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the
"GUARANTEEING PERSON"), any obligation of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under
any letter of credit) to induce the creation of which the guaranteeing
person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "PRIMARY
OBLIGATIONS") of any other third
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Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; PROVIDED,
HOWEVER, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.
"INDEBTEDNESS": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances issued or
created for the account of such Person and (e) all liabilities secured
by any Lien on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment
thereof.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last
day of each March, June, September and December to occur while such
Loan is outstanding, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period,
and (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day which is three months or a whole
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multiple thereof after the first day of such Interest Period and the
last day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one week or one, two, three or
six months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one week or one, two, three or
six months thereafter, as selected by the Borrower by
irrevocable notice to the Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of any Interest
Period pertaining to a Eurodollar Loan other than a
one-week Interest Period, the result of such extension
would be to carry such Interest Period into another
calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination
Date;
(3) any Interest Period pertaining to a Eurodollar Loan
(other than a one-week Interest Period) that begins on the
last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall
end on the last Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar
Loan during an Interest Period for such Loan.
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"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN": as defined in subsection 2.1.
"LOAN DOCUMENTS": this Agreement and the Notes.
"MATERIAL ADVERSE EFFECT": a material adverse effect on
(a) the business, operations, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as
a whole or (b) the validity or enforceability of this Agreement or any
Note or the rights or remedies of the Agent or the Lenders hereunder
or thereunder (other than a material adverse effect arising solely
from a work stoppage of the union employees of Roadway Express).
"MATERIAL SUBSIDIARY": at any time, any Subsidiary of the
Borrower from which the Borrower and its Subsidiaries derive at least
10% of their consolidated revenues as reflected in the most recent
audited consolidated financial statements of the Borrower.
"NON-EXCLUDED TAXES": as defined in subsection 2.14.
"NOTE": as defined in subsection 2.2.
"PARTICIPANTS": as defined in subsection 9.6(b).
"PERSON": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"PLAN": at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"PROPERTIES": as defined in subsection 3.14.
"REGISTER": as defined in subsection 9.6(d).
"REQUIRED LENDERS": at any time, Lenders the Commitment
Percentages of which aggregate at least 66-2/3%.
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"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"ROADWAY EXPRESS": Roadway Express Inc., a Delaware
corporation and a Material Subsidiary.
"RESPONSIBLE OFFICER": (i) the Chairman and Chief
Executive Officer, (ii) the President and Chief Operating Officer or
(iii) any Vice President of the Borrower or, with respect to financial
matters, the Chief Financial Officer of the Borrower.
"SUBSIDIARY": as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"TERMINATION DATE": the day which is 364 days after the
Closing Date.
"TRANSFEREE": as defined in subsection 9.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in the Notes, and any certificate
or other document made or delivered pursuant hereto, accounting terms relating
to the Borrower and its Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer
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to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (the "LOANS") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed the amount of such Lender's Commitment. During the Commitment
Period the Borrower may use the Commitments by borrowing, prepaying the Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Agent in accordance with subsections 2.3 and 2.7,
PROVIDED that no Loan shall be made as a Eurodollar Loan after the day that is
one week prior to the Termination Date.
2.2 NOTES. The Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit A, with appropriate insertions as to payee, date and principal amount
(a "NOTE"), payable to the order of such Lender and in a principal amount equal
to the lesser of (a) the amount of the initial Commitment of such Lender and
(b) the aggregate unpaid principal amount of all Loans made by such Lender.
Each Lender is hereby authorized to record the date, Type and amount of each
Loan made by such Lender, each continuation thereof, each conversion of all or
a portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto, on the schedule annexed to
and constituting a part of its Note, and any such recordation shall constitute
PRIMA FACIE evidence of the accuracy of the information so recorded. Each Note
shall (x) be dated the Closing Date, (y) be stated to mature on the Termination
Date and (z) provide for the payment of interest in accordance with subsection
2.8.
2.3 PROCEDURE FOR REVOLVING CREDIT BORROWING. The
Borrower may borrow under the Commitments during the Commitment Period on any
Business Day, PROVIDED that the Borrower shall give the Agent irrevocable
notice (which notice must be received by the Agent prior to 10:00 A.M., New
York City time, (a) three Business Days prior to the requested Borrowing Date,
if all or
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any part of the requested Loans are to be initially Eurodollar Loans or (b)
prior to 10:00 A.M., New York City time, on the requested Borrowing Date,
otherwise), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans or a combination thereof and (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the respective amounts of such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Each borrowing
under the Commitments shall be in an amount equal to $10,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then Available Commitments
are less than $10,000,000, such lesser amount). Upon receipt of any such
notice from the Borrower, the Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of each borrowing
available to the Agent for the account of the Borrower at the office of the
Agent specified in subsection 9.2 prior to 12:00 Noon, New York City time, on
the Borrowing Date requested by the Borrower in funds immediately available to
the Agent. Such borrowing will then be made available to the Borrower by the
Agent crediting the account of the Borrower on the books of such office with
the aggregate of the amounts made available to the Agent by the Lenders and in
like funds as received by the Agent.
2.4 FACILITY FEE. The Borrower agrees to pay to the Agent
for the account of each Lender a facility fee for the period from and including
the date of this Agreement to the Termination Date, computed at the rate of
0.05% per annum on the average daily amount of the Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on
the last day of each March, June, September and December and on the Termination
Date or such earlier date as the Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the date hereof.
2.5 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower
shall have the right, upon not less than five Business Days' notice to the
Agent, to terminate the Commitments or, from time to time, to reduce the amount
of the Commitments. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Commitments then in effect.
2.6 OPTIONAL PREPAYMENTS. The Borrower may on the last
day of any Interest Period with respect thereto, in the case of Eurodollar
Loans, or at any time and from time to time, in the case of ABR Loans, prepay
the Loans, in whole or in part, without premium or penalty, upon at least four
Business Days' irrevocable notice to the Agent, specifying the date and amount
of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. Upon receipt of any such notice the Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and
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payable on the date specified therein, together with any amounts payable
pursuant to subsection 2.15. Partial prepayments shall be in an aggregate
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof.
2.7 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to ABR Loans by giving
the Agent at least two Business Days' prior irrevocable notice of such
election, PROVIDED that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Agent at least three Business Days' prior irrevocable notice of such
election. Any such notice of conversion to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and ABR Loans may be converted
as provided herein, PROVIDED that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and
the Agent has or the Required Lenders have determined that such a conversion is
not appropriate and (ii) no Loan may be converted into a Eurodollar Loan after
the date that is one week prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, PROVIDED
that no Eurodollar Loan may be continued as such (i) when any Event of Default
has occurred and is continuing and the Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one week prior to the Termination Date and PROVIDED, FURTHER, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period.
2.8 INTEREST RATES AND PAYMENT DATES. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus 0.20%.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any facility fee or other
amount payable hereunder shall not be paid when due
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(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2% or (y) in the case of
overdue interest, facility fee or other amount, the rate described in paragraph
(b) of this subsection plus 2%, in each case from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.9 COMPUTATION OF INTEREST AND FEES. (a) Facility fees
and interest shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Agent shall as soon as practicable notify the Borrower and
the Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the Eurocurrency
Reserve Requirements, the C/D Assessment Rate or the C/D Reserve Percentage
shall become effective as of the opening of business on the day on which such
change becomes effective. The Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Agent
shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Agent in determining any interest rate
pursuant to subsection 2.8(a).
2.10 INABILITY TO DETERMINE INTEREST RATE. If prior to
the first day of any Interest Period the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, the Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall
be converted, on the first day of such Interest Period, to ABR Loans. Until
such notice has been withdrawn by the Agent, no further Eurodollar Loans shall
be made or continued as such, nor shall the Borrower have the right to convert
Loans to Eurodollar Loans.
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2.11 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing
by the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any facility fee hereunder and any reduction of the Commitments of
the Lenders shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the respective outstanding principal amounts of the Loans
then held by the Lenders. All payments (including prepayments) to be made by
the Borrower hereunder and under the Notes, whether on account of principal,
interest, fees or otherwise, shall be made without set off or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Agent, for the account of the Lenders, at the Agent's office specified
in subsection 9.2, in Dollars and in immediately available funds. The Agent
shall distribute such payments to the Lenders promptly upon receipt in like
funds as received. If any payment on an ABR Loan becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day.
(b) Unless the Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its Commitment Percentage of such borrowing available to
the Agent, the Agent may assume that such Lender is making such amount
available to the Agent, and the Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such amount is not
made available to the Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Agent. A certificate of the Agent submitted to any Lender with respect
to any amounts owing under this subsection shall be conclusive in the absence
of manifest error. If such Lender's Commitment Percentage of such borrowing is
not made available to the Agent by such Lender within three Business Days of
such Borrowing Date, the Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to ABR Loans hereunder,
on demand, from the Borrower.
2.12 ILLEGALITY. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as
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contemplated by this Agreement, (a) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans
to Eurodollar Loans shall forthwith be cancelled and (b) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to ABR Loans on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period as required by law.
If any such conversion of a Eurodollar Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to
subsection 2.15.
2.13 REQUIREMENTS OF LAW. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.14 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Agent) of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Lender to the Borrower (with a copy to the Agent) shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
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(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Agent) of a written request therefor, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
2.14 TAXES. (a) All payments made by the Borrower under
this Agreement and the Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Agent or any Lender as a
result of a present or former connection between the Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or the Notes). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings
("NON-EXCLUDED TAXES") are required to be withheld from any amounts payable to
the Agent or any Lender hereunder or under the Notes, the amounts so payable to
the Agent or such Lender shall be increased to the extent necessary to yield to
the Agent or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes, PROVIDED, HOWEVER, that the Borrower
shall not be required to increase any such amounts payable to any Lender that
is not organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of paragraph (b)
of this subsection. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Agent for its own account or for the account of such Lender, as the case may
be, a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to
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the Agent the required receipts or other required documentary evidence, the
Borrower shall indemnify the Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Agent or any Lender as a
result of any such failure. The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Agent two further
copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the Agent.
Such Lender shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a Participant
pursuant to subsection 9.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this subsection, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
2.15 INDEMNITY. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with
the
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provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the 0.20% margin referred to in
subsection 2.8(a)) over (ii) the amount of interest (as reasonably determined
by such Lender) which would have accrued to such Lender on such amount by
placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. This covenant shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Agent and each Lender that:
3.1 FINANCIAL CONDITION. The consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at December 31, 1993 and
the related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young, copies of which have
heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as disclosed therein).
Neither the Borrower nor any of its consolidated Subsidiaries had, at December
31, 1993, any material Guarantee Obligation, contingent liability or liability
for taxes, or any long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements, the
notes thereto or the letters to Ernst & Young from the Vice President and
General Counsel of the Borrower dated December 31, 1993, January 19, 1994 and
March 4, 1994, respectively. During the period from December 31, 1993 to and
including the date hereof there has been no sale, transfer or
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other disposition by the Borrower or any of its consolidated Subsidiaries of
any material part of its business or property and no purchase or other
acquisition of any business or property (including any capital stock of any
other Person) material in relation to the consolidated financial condition of
the Borrower and its consolidated Subsidiaries at December 31, 1993.
3.2 NO CHANGE. Since December 31, 1993 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the
Borrower and its Material Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation 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 to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS. The Borrower has the corporate power and authority, and the legal
right, to make, deliver and perform the Loan Documents and to borrow hereunder
and has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and the Notes and to authorize the
execution, delivery and performance of the Loan Documents. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents. This Agreement has been, and each of
the Notes will be, duly executed and delivered on behalf of the Borrower. This
Agreement constitutes, and each of the Notes when executed and delivered will
constitute, a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
3.5 NO LEGAL BAR. The execution, delivery and performance
of the Loan Documents, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual Obligation of
the Borrower or of any of its Material Subsidiaries and will not result in, or
require, the
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creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation.
3.6 NO MATERIAL LITIGATION. Except as disclosed in Note G
to the Borrower's audited consolidated financial statements for the fiscal year
ended December 31, 1993, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby or (b) which could reasonably be expected to
have a Material Adverse Effect.
3.7 NO DEFAULT. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
3.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower
and its Material Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property (except to
the extent that the failure to have such title or interest, in any instance or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect), and none of such property is subject to any Lien except as permitted
by subsection 6.2.
3.9 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Material Subsidiaries
could reasonably be expected to have a Material Adverse Effect.
3.10 TAXES. Each of the Borrower and its Material
Subsidiaries has filed or caused to be filed all tax returns which, to the
knowledge of the Borrower, are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which accruals in conformity with
GAAP have been provided on the books of the Borrower or its Material
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
3.11 ERISA. To the best knowledge of the Borrower, there
has not occurred any event or condition of non-compliance
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with any provisions of ERISA that, in any instance or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
3.12 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board of Governors
of the Federal Reserve System) which limits its ability to incur Indebtedness.
3.13 PURPOSE OF LOANS. The proceeds of the Loans shall be
used by the Borrower for general corporate purposes. The proceeds of the Loans
shall not be used by the Borrower or any of its Subsidiaries in connection with
any "hostile acquisition." As used in this subsection, "hostile acquisition"
shall mean any acquisition by the Borrower or any of its Subsidiaries of a
business or any portion of a business (including any of its assets or equity
securities) if such acquisition is deemed by a majority of the Borrower's Board
of Directors, in its reasonable judgment, to be hostile.
3.14 ENVIRONMENTAL MATTERS. To the best knowledge of the
Borrower, there has not occurred any event or condition of non-compliance with
any Environmental Laws by the Borrower or any of its Subsidiaries that could,
in any instance or in the aggregate, reasonably be expected to have a Material
Adverse Effect. All licenses, permits or registrations required for the
business of the Borrower or any of its Subsidiaries under any Environmental
Laws have been secured, and the Borrower and its Subsidiaries are in compliance
therewith, except such licenses, permits or registrations the failure of which
to secure or comply with, in any instance or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Borrower, there are no substances at, in, on or beneath any
real property owned or leased by the Borrower or any of its Subsidiaries, or
elsewhere, that in any instance or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO INITIAL LOANS. The agreement of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the making of such Loan
on the Closing Date, of the following conditions precedent:
(a) LOAN DOCUMENTS. The Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of
the Borrower, with a counterpart for each Lender, and (ii) for the
account of each Lender, a Note
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conforming to the requirements hereof and executed by a duly
authorized officer of the Borrower.
(b) CORPORATE PROCEEDINGS OF THE BORROWER. The Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Executive and Finance Committee of the Board of Directors of the
Borrower authorizing (i) the execution, delivery and performance of
this Agreement and the Notes and (ii) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of the
Borrower as of the Closing Date, which certificate shall be in form
and substance satisfactory to the Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(c) BORROWER INCUMBENCY CERTIFICATE. The Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature
of the officers of the Borrower executing any Loan Document
satisfactory in form and substance to the Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(d) CORPORATE DOCUMENTS. The Agent shall have received,
with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws of the Borrower, certified as
of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Borrower.
(e) LEGAL OPINIONS. The Agent shall have received, with a
counterpart for each Lender, the executed legal opinion of John M.
Glenn, Vice President and General Counsel of the Borrower,
substantially in the form of Exhibit B. Such legal opinion shall
cover such other matters incident to the transactions contemplated by
this Agreement as the Agent may reasonably require.
4.2 CONDITIONS TO EACH LOAN. The agreement of each Lender
to make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date.
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
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(c) ADDITIONAL MATTERS. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and
the Notes shall be satisfactory in form and substance to the Agent,
and the Agent shall have received such other documents in respect of
any aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this subsection 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any other amount
is owing to any Lender or the Agent hereunder, the Borrower shall and, in the
case of subsections 5.3, 5.4, 5.5 and 5.6, shall cause each of its Material
Subsidiaries to, and in the case of subsections 5.7 and 5.8 shall cause each of
its Subsidiaries to:
5.1 FINANCIAL STATEMENTS. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, by Ernst & Young or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
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all such financial statements shall be fairly presented in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 CERTIFICATES; OTHER INFORMATION. Furnish to each
Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and 5.1(b), a certificate
of a Responsible Officer stating that, to the best of such Officer's
knowledge, the Borrower during such period has observed or performed
all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and in the Notes to be
observed, performed or satisfied by it, and that such Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate;
(b) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders, and within ten days after the same are filed, copies of
all financial statements and reports which the Borrower may make to,
or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority; and
(c) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
5.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and accruals in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Material Subsidiaries, as the case may be.
5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
as otherwise permitted pursuant to Section 6; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
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5.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks as
are usually insured against in the same general area by companies engaged in
the same or a similar business; and furnish to each Lender, upon written
request, full information as to the insurance carried.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS;
DISCUSSIONS. Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect any
of its properties and examine any of its books and records at any reasonable
time and as often as may reasonably be necessary and to discuss the business,
operations, properties and financial and other condition of the Borrower and
its Material Subsidiaries with officers of the Borrower and its Material
Subsidiaries and with its independent certified public accountants.
5.7 NOTICES. Promptly give notice to the Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $25,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought; and
(d) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.8 ENVIRONMENTAL LAWS. (a)Comply with, and ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with
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and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and accruals in conformity with GAAP with
respect thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any other amount
is owing to any Lender or the Agent hereunder, the Borrower shall not, and
(except with respect to subsection 6.1) shall not permit any of its Material
Subsidiaries to, directly or indirectly:
6.1 MAINTENANCE OF CONSOLIDATED NET WORTH. Permit
Consolidated Net Worth at any time to be less than $750,000,000.
6.2 LIMITATION ON LIENS. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, PROVIDED that
adequate accruals with respect thereto are maintained on the books of
the Borrower or its Material Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
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other obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and which do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or such Material Subsidiary;
(f) Liens in existence on the date hereof, PROVIDED that
no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is
not increased;
(g) Liens securing Indebtedness of the Borrower and its
Material Subsidiaries incurred to finance the acquisition of fixed or
capital assets, PROVIDED that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or
capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness, (iii)
the amount of Indebtedness secured thereby is not increased and (iv)
the principal amount of Indebtedness secured by any such Lien shall at
no time exceed 100% of the original purchase price of such property at
the time it was acquired;
(h) Liens on the property or assets of a corporation which
becomes a Material Subsidiary after the date hereof, PROVIDED that (i)
such Liens existed at the time such corporation became a Material
Subsidiary and were not created in anticipation thereof, (ii) any such
Lien is not spread to cover any property or assets of such corporation
after the time such corporation becomes a Material Subsidiary, and
(iii) the amount of Indebtedness secured thereby is not increased; and
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Material
Subsidiaries) $25,000,000 in aggregate amount at any time outstanding.
6.3 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except:
(a) any Material Subsidiary of the Borrower may be merged
or consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving
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corporation) or with or into any one or more wholly owned Material
Subsidiaries of the Borrower provided that the wholly owned Material
Subsidiary or Material Subsidiaries shall be the continuing or
surviving corporation); and
(b) any wholly owned Material Subsidiary may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any other
wholly owned Material Subsidiary of the Borrower.
6.4 LIMITATION ON SALE OF ASSETS. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Material
Subsidiary, issue or sell any shares of such Material Subsidiary's Capital
Stock to any Person other than the Borrower or any wholly owned Material
Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale or other disposition of any property in the
ordinary course of business, PROVIDED that (other than inventory) the
aggregate book value of all assets so sold or disposed of in any
period of twelve consecutive months shall not exceed 10% of
consolidated total assets of the Borrower and its Subsidiaries as at
the beginning of such twelve-month period;
(c) the sale of inventory in the ordinary course of
business;
(d) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof; and
(e) as permitted by subsection 6.3(b).
6.5 LIMITATION ON LINES OF BUSINESS. Enter into any
business, either directly or through any Subsidiary, except for the businesses
of transportation and logistics or any other business directly related thereto.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of any
Note when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on
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any Note, or any other amount payable hereunder, within five days
after any such interest or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower herein or in any Note or which is contained in any
certificate, document or financial or other statement furnished by it
at any time under or in connection with this Agreement or any such
Note shall prove to have been incorrect in any material respect on or
as of the date made or deemed made and, in the case of any default
pursuant to this paragraph (b) that is capable of being remedied, such
default shall continue unremedied for a period of 30 days; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in subsection 6.3, 6.4 or 6.5;
or
(d) The Borrower shall default in the observance or
performance of any other agreement contained in this Agreement or any
Note (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of
30 days; or
(e) The Borrower or any of its Material Subsidiaries shall
(i) default in any payment of principal of or interest of any
Indebtedness (other than the Notes) or in the payment of any Guarantee
Obligation, beyond the period of grace (not to exceed 30 days), if
any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation
to become payable; or
(f) (i) The Borrower or any of its Material Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with
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respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it
or for all or any substantial part of its assets, or the Borrower
or any of its Material Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced
against the Borrower or any of its Material Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against the Borrower or any of its Material
Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any of its
Material Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of its Material Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) Any event or condition shall occur or exist with
respect to a Plan which could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Material Subsidiaries involving in
the aggregate a liability (not paid or fully covered by insurance) of
$25,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the Agent
may, or upon the request of the Required Lenders, the Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Agent may, or upon the request of the Required Lenders,
the Agent shall, by notice to the Borrower, declare the Loans hereunder (with
accrued interest
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thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 APPOINTMENT. Each Lender hereby irrevocably
designates and appoints the Agent as the agent of such Lender under this
Agreement and the Notes, and each such Lender irrevocably authorizes the Agent,
in such capacity, to take such action on its behalf under the provisions of
this Agreement and the Notes and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement
and the Notes, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or the Notes or
otherwise exist against the Agent.
8.2 DELEGATION OF DUTIES. The Agent may execute any of
its duties under this Agreement and the Notes by or through agents 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 agents or attorneys in-fact selected by it with
reasonable care.
8.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any Note (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any Note 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 Note or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the Notes or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any Note, or to inspect the properties, books or records of the
Borrower.
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8.4 RELIANCE BY AGENT. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order 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, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or the Notes unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the Notes in accordance with a request of the Required Lenders,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Notes.
8.5 NOTICE OF DEFAULT. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or the Borrower
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 Lenders.
The Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; PROVIDED that
unless and until the Agent shall have received such directions, 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 in the best interests of the Lenders.
8.6 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each
509235\0227\00825\942QD5NS.CRA
36
33
Lender also represents that it will, independently and without reliance upon
the Agent or any other Lender, 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 Notes, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agent hereunder, the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
8.7 INDEMNIFICATION. The Lenders agree to indemnify the
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of, the Commitments, this Agreement, the Notes or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Agent under or in connection with any of the foregoing; PROVIDED that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Agent's gross negligence or
willful misconduct. The agreements in this subsection shall survive the
payment of the Notes and all other amounts payable hereunder.
8.8 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower as though the Agent were not the Agent
hereunder and under the Notes. With respect to its Loans made or renewed by it
and any Note issued to it, the Agent shall have the same rights and powers
under this Agreement and the Notes as any Lender and may exercise the same as
though it were not the Agent, and the terms
509235\0227\00825\942QD5NS.CRA
37
34
"Lender" and "Lenders" shall include the Agent in its individual capacity.
8.9 SUCCESSOR AGENT. The Agent may resign as Agent upon
10 days' notice to the Lenders. If the Agent shall resign as Agent under this
Agreement and the Notes, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation as Agent, the provisions of this Section 8 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the Notes.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Neither this Agreement or any
Note nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of this subsection. The Required
Lenders may, or, with the written consent of the Required Lenders, the Agent
may, from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the Notes for the purpose of adding
any provisions to this Agreement or the Notes or changing in any manner the
rights of the Lenders or of the Borrower hereunder or thereunder or (b) waive,
on such terms and conditions as the Required Lenders or the Agent, as the case
may be, may specify in such instrument, any of the requirements of this
Agreement or the Notes or any Default or Event of Default and its consequences;
PROVIDED, HOWEVER, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Note or of any installment thereof, or reduce the stated rate
of any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the Notes, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Section 8 without the written consent of the then Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Lenders and shall be binding upon the Borrower, the Lenders, the
Agent and all future holders of the Notes. In the
509235\0227\00825\942QD5NS.CRA
38
35
case of any waiver, the Borrower, the Lenders and the Agent shall be restored
to their former position and rights hereunder and under the outstanding Notes,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
9.2 NOTICES. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or 5 days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower and the Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto and any
future holders of the Notes:
The Borrower: Roadway Services, Inc.
1077 Gorge Boulevard
Akron, Ohio 44309-0088
Attention: John P. Chandler
Telecopy: 216-258-2550
with a copy to: Roadway Services, Inc.
1077 Gorge Boulevard
Akron, Ohio 44309-0088
Attention: John M. Glenn
Telecopy: 216-258-6034
The Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Karen Sager
Telecopy: 212-972-9854
PROVIDED that any notice, request or demand to or upon the Agent or the Lenders
pursuant to subsection 2.3, 2.5, 2.6, 2.7 or 2.11 shall not be effective until
received.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Agent or any Lender,
any right, remedy, power or privilege hereunder or under the Notes 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. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the Notes and
509235\0227\00825\942QD5NS.CRA
39
36
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the Notes and the making of the Loans hereunder.
9.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees
(a) to pay or reimburse the Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse each
Lender and the Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement and the
Notes and any such other documents, including, without limitation, the fees and
disbursements of counsel to each Lender and of counsel to the Agent, (c) to
pay, indemnify, and hold each Lender and the Agent harmless from any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement and the Notes and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Agent harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement, the Notes, and any such other documents,
including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or any of the
Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), PROVIDED, that the Borrower shall have no
obligation hereunder to the Agent or any Lender with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of the
Agent or any such Lender or (ii) legal proceedings commenced against the Agent
or any such Lender by any security holder or creditor thereof arising out of
and based upon rights afforded any such security holder or creditor solely in
its capacity as such. The agreements in this subsection shall survive
repayment of the Notes and all other amounts payable hereunder.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND
ASSIGNMENTS. (a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future holders of the
Notes and their respective successors and
509235\0227\00825\942QD5NS.CRA
40
37
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, with the
consent of the Borrower, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and such Note. The Borrower agrees that
if amounts outstanding under this Agreement and the Notes are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement and
any Note to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or any Note, PROVIDED
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as
provided in subsection 9.7 as fully as if it were a Lender hereunder. The
Borrower also agrees that each Participant shall be entitled to the benefits of
subsections 2.13, 2.14 and 2.15 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Lender;
PROVIDED that, in the case of subsection 2.14, such Participant shall have
complied with the requirements of said subsection and PROVIDED, FURTHER, that
no Participant shall be entitled to receive any greater amount pursuant to any
such subsection than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
and from time to time assign to any Lender or any affiliate thereof or, with
the consent of the Borrower, to an additional bank or financial institution
("an ASSIGNEE") all or any part of its rights and obligations under this
Agreement and the Notes pursuant to an Assignment and Acceptance (an
"ASSIGNMENT AND ACCEPTANCE"), substantially in the form of Exhibit C, executed
by such Assignee, such assigning Lender (and, in the case of an Assignee that
is not then a Lender or an
509235\0227\00825\942QD5NS.CRA
41
38
affiliate thereof, by the Borrower and the Agent) and delivered to the Agent
for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto).
(d) The Agent shall maintain at its address referred to in
subsection 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an
Assignee that is not then a Lender or an affiliate thereof, by the Borrower and
the Agent), together with payment to the Agent of a registration and processing
fee of $2,500, the Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower. On or prior to
such effective date, the Borrower, at its own expense, shall execute and
deliver to the Agent (in exchange for the Note of the assigning Lender) a new
Note to the order of such Assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder, a new Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Notes shall be dated the Closing Date and shall otherwise be in the form of the
Note replaced thereby.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and, with the consent of the
Borrower, any prospective Transferee subject to the provisions of subsection
9.15, any and all financial information in such Lender's possession concerning
the Borrower
509235\0227\00825\942QD5NS.CRA
42
39
and its Affiliates which has been delivered to such Lender by or on behalf of
the Borrower pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement.
(g) Nothing herein shall prohibit any Lender from pledging
or assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
9.7 ADJUSTMENTS. If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
PROVIDED, HOWEVER, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
9.8 COUNTERPARTS. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Agent.
9.9 SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
9.10 INTEGRATION. This Agreement and the Notes represent
the agreement of the Borrower, the Agent and the Lenders with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the Notes.
509235\0227\00825\942QD5NS.CRA
43
9.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
9.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the Notes, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding shall be effected by telecopying a copy thereof to the
Borrower at its telecopy number set forth in subsection 9.2 or at such
other telecopy number of which the Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
9.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement or the Notes, and the relationship
between Agent and Lenders, on one hand, and the Borrower, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
509235\0227\00825\942QD5NS.CRA
44
(c) no joint venture is created hereby or by the Notes or
otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY
COUNTERCLAIM THEREIN.
9.15 CONFIDENTIALITY. The Agent and the Lenders agree to
keep confidential this Agreement and the Notes and all non- public information
provided to it by the Borrower pursuant to this Agreement that is designated by
the Borrower in writing as confidential (this Agreement, the Notes and such
non-public information is collectively referred to herein as the
"INFORMATION"); PROVIDED, HOWEVER, that nothing herein shall prevent the Agent
or any Lender from disclosing any Information (i) to the Agent or any other
Lender, (ii) to any Transferee which receives such Information having been made
aware of the confidential nature thereof, (iii) to its employees, directors,
agents, Affiliates, attorneys, accountants and other professional advisors,
(iv) upon the request or demand of any Governmental Authority having
jurisdiction over the Agent or such Lender, (v) in response to any order of any
court or other Governmental Authority or as may otherwise be required pursuant
to any Requirement of Law, (vi) which has been publicly disclosed other than in
breach of this Agreement or (vii) in connection with the exercise of any remedy
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
ROADWAY SERVICES, INC.
By: /s/ D. A. Wilson
-------------------------------
Title: Senior Vice President-Finance and
Planning, Chief Financial Officer
CHEMICAL BANK,
as Agent and as a Lender
By: /s/ Karen M. Sager
-------------------------------
Title: Vice President
BANK ONE, AKRON, N.A., as a Lender
By: /s/ Steven B. Currier
-------------------------------
Title: Assistant Vice President
509235\0227\00825\942QD5NS.CRA
45
Schedule I
LENDERS, ADDRESSES AND COMMITMENTS
LENDER COMMITMENT
------ ----------
Chemical Bank $75,000,000
270 Park Avenue
New York, New York 10017
Attention: Karen Sager
Telecopy: (212) 972-9854
Bank One, Akron, N.A. $75,000,000
50 South Main Street
Akron, Ohio 44309
Attention: Corporate Banking Dept.
Telecopy: (216) 972-1598
============
$150,000,000
509235\0227\00825\942QD5NS.CRA
46
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$___________
New York, New York
March __, 1994
FOR VALUE RECEIVED, the undersigned, Roadway Services, Inc., an Ohio
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of ________________ (the "LENDER") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, on the Termination
Date the principal amount of (a) _______________ DOLLARS ($__________), or, if
less, (b) the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to subsection 2.1 of the Credit Agreement, as
hereinafter defined. The Borrower further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in subsection 2.8 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute PRIMA FACIE evidence of the accuracy of
the information endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement
dated as of March __, 1994 (as amended, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"), among the Borrower, the Lender, the
other banks and financial institutions from time to time parties thereto and
Chemical Bank, as agent, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or
in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
509235\0227\00825\9433CGY0.NOT
47
2
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ROADWAY SERVICES, INC.
By: ___________________________
Name: _________________________
Title: ________________________
509235\0227\00825\9433CGY0.NOT
48
Schedule A
to Revolving Credit Note
------------------------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | Amount | |Amount of ABR Loans| | |
| | | Converted to |Amount of Principal of | Converted to |Unpaid Principal Balance| |
| Date | Amount of ABR Loans| ABR Loans | ABR Loans Repaid | Eurodollar Loans | of ABR Loans |Notation Made By|
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+------+--------------------+--------------+-----------------------+-------------------+------------------------+----------------+
| | | | | | | |
+======+====================+==============+=======================+===================+========================+================+
509235\0227\00825\9433CGY0.NOT
49
Schedule B
to Revolving Credit Note
------------------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | Interest Period | Amount of | Amount of | | |
| | |Amount Converted| and Eurodollar | Principal of |Eurodollar Loans | Unpaid Principal | |
| | Amount of | to Eurodollar | Rate with Respect |Eurodollar Loans |Converted to ABR |Balance of Eurodollar |Notation|
|Date |Eurodollar Loans| Loans | Thereto | Repaid | Loans | Eurodollar Loans |Made By |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+-----+----------------+----------------+---------------------+------------------+-----------------+----------------------+--------+
| | | | | | | | |
+=====+================+================+=====================+==================+=================+======================+========+
509235\0227\00825\9433CGY0.NOT
50
EXHIBIT B
FORM OF OPINION OF
GENERAL COUNSEL TO THE BORROWER
Chemical Bank, as Agent and a Lender
270 Park Avenue
New York, NY 10017
Bank One, Akron, N.A.
50 South Main Street
Akron, OH 44309
Gentlemen:
I am Vice President and General Counsel of Roadway Services, Inc., an
Ohio corporation (the Borrower). This opinion is delivered in connection with
(a) the Credit Agreement dated as of March 31, 1994 by and among the Borrower,
Chemical Bank, as Agent and a Lender (Chemical) and Bank One, Akron, N.A. (Bank
One), a Lender (the Credit Agreement) and (b) the Notes.
The opinion expressed below is furnished to you pursuant to subsection
4.1(e) of the Credit Agreement. Unless otherwise defined herein, the terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
In rendering the following opinion, I, or members of my staff acting
under my supervision, have examined and are familiar with, and have relied
upon, originals or copies, identified to our satisfaction, of such certificates
of public officials and officers of the Borrower and other such documents and
records as I deemed appropriate, and have examined such matters of law as I
deemed necessary for the purpose of this opinion. Included in our information
was the Credit Agreement and the Notes.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to the Borrower as originals, (b) the genuineness of
all signatures on all documents that I examined (other than those of the
Borrower and officers of the Borrower) and (c) the conformity to authentic
originals of documents submitted to me as certified, conformed or photostatic
copies.
509235\0227\00825\9433CGY0.NOT
51
Chemical Bank, as Agent and a Lender
Bank One, Akron, N.A.
Page Two
- ------------------------------------
Based upon and subject to the foregoing, I am of the opinion that:
1. Each of the Borrower and its Material Subsidiaries (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority and
the legal right to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged and (c) is duly qualified as a foreign corporation 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, except to the extent that the failure to be so qualified could
not, in the aggregate, have a Material Adverse Effect.
2. The Borrower has the corporate power and authority, and the
legal right, to make, deliver and perform its obligations under the Credit
Agreement and the Notes and to borrow under the Credit Agreement. The Borrower
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of the Credit Agreement and the Notes and to authorize
the execution, delivery and performance of the Credit Agreement and the Notes.
No consent or authorization of, approval by, notice to, filing with or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings under the Credit Agreement or with
the execution, delivery, performance, validity or enforceability of the Credit
Agreement and the Notes.
3. Each of the Credit Agreement and the Notes has been duly
executed and delivered on behalf of the Borrower and constitutes a legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
4. The execution and delivery of the Credit Agreement and the
Notes, the performance by the Borrower of its obligations thereunder, the
consummation of the transactions contemplated thereby, the compliance by the
Borrower and each of its Subsidiaries or Material Subsidiaries, as the case
may be, with any of the provisions thereof, the borrowings under the Credit
Agreement and the use of proceeds thereof, all as provided therein, (a) will
not violate, or constitute a default under, any Requirement of Law or any
Contractual Obligations of the Borrower or of any of its Subsidiaries or
Material Subsidiaries, as the case may be, and (b) will not result in, or
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues.
509235\0227\00825\9433CGY0.NOT
52
Chemical Bank, as Agent and a Lender
Bank One, Akron, N.A.
Page Three
- ------------------------------------
5. Except as disclosed in Note G to the Borrower's audited
consolidated financial statements for the fiscal year ended December 31, 1994,
no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or threatened by or against the Borrower or
any of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Credit Agreement or any of the Notes or (b)
that could reasonably be expected to have a Material Adverse Effect.
6. Neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect.
7. The Borrower is not (a) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or (2) a "holding company" as defined in, or
otherwise subject to regulation under, the Public Utility Holding Company Act
of 1935. The Borrower is not subject to regulation under any Federal or state
statute or regulation which limits its ability to incur Indebtedness.
I am a member of the bar of the State of Ohio and I express no opinion
as to the laws of any jurisdiction other than the laws of the State of Ohio and
the laws of the United States of America. This opinion is provided solely for
the benefit of the addressees hereof and for the benefit of any purchasing
Lenders pursuant to Section 9.6 of the Credit Agreement in connection with the
Credit Agreement and the transactions contemplated thereby and may not be
relied upon in any manner by any other person without my prior written consent;
PROVIDED, HOWEVER, that this opinion may be delivered to your regulators,
accountants, attorneys and other professional advisers and may be used in
connection with any legal or regulatory proceeding relating to the subject
matter of this opinion.
Very truly yours,
/s/ JOHN M. GLENN
Vice President and General Counsel
jmg110/jah
53
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of March __, 1994,
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among Roadway Services, Inc. (the "BORROWER"), the Lenders named
therein and Chemical Bank, as agent for the Lenders (in such capacity, the
"AGENT"). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
____________________ (the "ASSIGNOR") and ____________________ (the
"ASSIGNEE") agree as follows:
I. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a ___% interest (the "ASSIGNED INTEREST") in
and to the Assignor's rights and obligations under the Credit Agreement with
respect to the revolving credit facility contained therein (the "ASSIGNED
FACILITY") in the principal amount set forth on SCHEDULE 1.
II. The Assignor A makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any Note or any other instrument or document furnished pursuant
thereto, other than that it has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear of any
such adverse claim; 11.2 makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any of
its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement or any Note or any other
instrument or document furnished pursuant hereto or thereto; and 11.3 attaches
the Note held by it evidencing the Assigned Facility and requests that the
Agent exchange such Note for a new Note payable to the Assignee and (if the
Assignor has retained any interest in the Assigned Facility) a new Note payable
to the Assignor in the respective amounts which reflect the assignment being
made hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
III. The Assignee 12.1 represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; B. confirms that it
has received a copy of the Credit Agreement,
509235\0227\00825\9433CQX1.AGR
54
2
together with copies of the financial statements delivered pursuant to
subsection 3.1 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; C. agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the Notes or any other instrument or document furnished
pursuant hereto or thereto; D. appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, the Notes or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agent by the terms thereof,
together with such powers as are incidental thereto; and E. agrees that it will
be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to paragraph 2.14(b) of the Credit Agreement.
IV. The effective date of this Assignment and Acceptance shall be
_________ ___, 19__ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to subsection 9.6 of the Credit
Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Agent, be earlier than five Business Days after the
date of such acceptance and recording by the Agent).
V. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Agent for periods prior to
the Effective Date or with respect to the making of this assignment directly
between themselves.
VI. From and after the Effective Date, 15.1 the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and
under the Notes and shall be bound by the provisions thereof and 15.2 the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
509235\0227\00825\9433CQX1.AGR
55
3
VII. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
509235\0227\00825\9433CQX1.AGR
56
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT, DATED AS OF MARCH , 1994,
---
AMONG
ROADWAY SERVICES, INC.,
THE LENDERS NAMED THEREIN
AND
CHEMICAL BANK, AS AGENT FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
- ----------------------------------------------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned1/
- ----------------- --------------- ------------------------------
Revolving Credit Facility $ . %
--------------- --- ---------------
[Name of Assignee] [Name of Assignor]
By _________________________________ By _______________________________________
Name: Name:
Title: Title:
Accepted: Consented To:
Chemical Bank, as Agent Roadway Services, Inc.
By _________________________________ By _______________________________________
Name: Name:
Title: Title:
<FN>
- --------------------
1/ Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the
aggregate commitments of all Lenders.
509235\0227\00825\9433CQX1.AGR