Exhibit 10.16
U.S. $175,000,000
CREDIT AGREEMENT
Dated as of October 12, 1999
Among
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
ABN AMRO BANK N. V.
as Issuing Bank and Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 21
SECTION 1.03. Accounting Terms 21
SECTION 1.04. Other Interpretive Provisions 21
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances 22
SECTION 2.02. Making the Advances 23
SECTION 2.03. Issuance of and Drawings Under Letters of
Credit 25
SECTION 2.04. Fees 27
SECTION 2.05. Termination or Reduction of the Commitments;
Extension of the Facilities 28
SECTION 2.06. Repayment 30
SECTION 2.07. Interest 31
SECTION 2.08. Interest Rate Determination 32
SECTION 2.09. Optional Conversion of Advances 33
SECTION 2.10. Optional Prepayments 33
SECTION 2.11. Increased Costs and Reduction of Return 33
SECTION 2.12. Illegality 34
SECTION 2.13. Payments and Computations 34
SECTION 2.14. Taxes 35
SECTION 2.15. Sharing of Payments, Etc. 38
SECTION 2.16. Use of Proceeds 39
SECTION 2.17. Substitution of Lenders 39
SECTION 2.18. Evidence of Debt 39
SECTION 2.19. Additional Interest on Eurodollar Rate
Advances 40
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness 40
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance 41
SECTION 3.03. Determinations Under Section 3.01 42
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower 42
ARTICLE V COVENANTS
SECTION 5.01. Affirmative Covenants 45
SECTION 5.02. Negative Covenants 48
SECTION 5.03. Financial Covenants 50
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default 51
SECTION 6.02. Actions in Respect of the Letters of Credit
upon Default 53
ARTICLE VII The Administrative Agent
SECTION 7.01 Appointment and Authorization 54
SECTION 7.02 Delegation of Duties. 55
SECTION 7.03 Liability of the Administrative Agent. 55
SECTION 7.04 Reliance by the Administrative Agent and the
Issuing Bank. 55
SECTION 7.05 Notice of Default. 56
SECTION 7.06 Lender Party Credit Decision 56
SECTION 7.07 Indemnification of the Administrative Agent
57
SECTION 7.08 Administrative Agent in Individual Capacity
58
SECTION 7.09 Successor Administrative Agent. 58
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 59
SECTION 8.02. Notices, Etc. 60
SECTION 8.03. No Waiver; Remedies 60
SECTION 8.04. Costs and Expenses 61
SECTION 8.05. Right of Set-off 62
SECTION 8.06. Binding Effect; Entire Agreement 63
SECTION 8.07. Assignments and Participations 63
SECTION 8.08. Confidentiality 66
SECTION 8.09. No Liability of the Issuing Bank 66
SECTION 8.10. Governing Law 66
SECTION 8.11. Execution in Counterparts 67
SECTION 8.12. Jurisdiction, Etc. 67
SECTION 8.13. Waiver of Jury Trial 67
Dated as of October 12, 1999
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a
Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders listed on the
signature pages hereof as Tranche A lenders (the "Initial Tranche
A Lenders"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as
Tranche B lenders (the "Initial Tranche B Lenders" and, together
with the Initial Tranche A Lenders, the "Initial Lenders"), and
ABN AMRO BANK N.V., a bank organized under the laws of the
Netherlands ("ABN AMRO") as issuing bank (the "Issuing Bank") and
agent (the "Administrative Agent") for the Lender Parties (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the
recitals of parties to this Agreement, and shall include any
successor agent.
"Administrative Agent's Account" means the account of
the Administrative Agent maintained by the Administrative
Agent at ABN AMRO Bank N.V. with its office in New York, New
York.
"Advance" means a Tranche A Revolving Credit Advance, a
Tranche B Revolving Credit Advance or a Letter of Credit
Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person.
"Affiliate Guaranty" means the Guaranty Agreement, in
substantially the form of Exhibit C hereto, to be executed
by the Guarantors in favor of the Administrative Agent (as
agent for itself and the other Lender Parties), as the same
may be amended from time to time.
"Agent-Related Persons" means ABN AMRO and any
successor Administrative Agent arising under Section 7.09
and any successor Issuing Bank hereunder, together with
their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Applicable Lending Office" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in
the case of a Base Rate Advance and such Lender Party's
Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means, as of any date of
determination, a percentage per annum determined as set
forth on Schedule II hereto.
"Applicable Percentage" means, as of any date of
determination, a percentage per annum determined as set
forth on Schedule II hereto.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender Party and an Eligible
Asssignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit F hereto.
"Attorney Costs" means and includes all reasonable fees
and services of any law firm or other external counsel.
"Available Amount" of any Letter of Credit means, at
any time, the maximum amount available to be drawn under
such Letter of Credit at such time (assuming compliance at
such time with all conditions to drawing).
"BABC Agreement" means the Loan and Security Agreement
dated as of November 27, 1996 among the Borrower, the other
Loan Parties (as defined therein), the financial
institutions party thereto, and BankAmerica Business Credit,
Inc., as agent for such financial institutions ("BABC"), as
the same has been amended to date.
"Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to
time which rate per annum shall at all times be equal to the
higher of: (a) the rate of interest announced publicly by
ABN AMRO at its office in Chicago, Illinois, from time to
time, as its prime or base rate; and (b) 1/2 of one percent
per annum above the Federal Funds Rate. Any change in the
prime or base rate announced by ABN AMRO shall take effect
at the opening of business on the day specified in the
public announcement of such change. Such prime or base rate
is determined as a means of pricing credit extensions to
some customers and is not directly related to any external
rate of interest or index, nor necessarily the lowest rate
of interest charged at any given time for any particular
class of customers.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower's Designated Account" has the meaning set
forth in Section 2.02(a).
"Borrowing" means a borrowing consisting of Tranche A
Revolving Credit Advances or Tranche B Revolving Credit
Advances of the same Type made on the same day by the
Lenders.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York,
Chicago or San Francisco and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings
in U.S. dollars are carried on in the London interbank
market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other
Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Lease" means any lease of Property by the
Parent or any of its Subsidiaries which, in accordance with
GAAP, is or should be capitalized on the Parent's or such
Subsidiary's balance sheet, as the case may be, or for which
the amount of the asset and liability thereunder, if so
capitalized, should be disclosed in a footnote to such
balance sheet.
"Cash Equivalents" means: (a) direct obligations of
the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of
the United States, (b) money market funds with assets in
excess of $1,000,000,000, (c) certificates of deposit
("CDs"), bankers acceptances, eurodollar CDs or Yankee CDs
with (i) U.S. commercial banks with capital of at least
$200,000,000 and a senior long-term dollar denominated debt
rating of at least "A" by Moody's and S&P or (ii) foreign
commercial banks with assets of at least $1,000,000,000 and
a Thompson Bankwatch rating of at least TBW-1,
(d) eurodollar time deposits with the Nassau or Cayman
offshore branches of U.S. commercial banks with capital of
at least $200,000,000 and a senior long-term dollar
denominated debt rating of at least "A" by Moody's and S&P,
(e) commercial paper rated at least "P2" by Moody's and "A2"
by S&P, (f) medium term, fixed or floating rate notes in
offerings of at least $100,000,000 with a maximum tenor of
five years, issued by U.S. corporations with a senior long-
term dollar denominated debt rating of at least "A" by
Moody's and S&P, and (g) repurchase agreements, provided
that (w) the market value of the collateral securing any
such repurchase agreement must be equal to at least 102% of
the repurchase value plus accrued interest, (x) the
collateral (A) has a maturity of three years or less, (B) is
issued by the Government of the United States or any agency
or instrumentality thereof or U.S. commercial banks with
capital of at least $200,000,000 and a senior long-term
dollar denominated debt rating of at least "A" by Moody's
and S&P and (C) has pricing information that is available on
the Bloomberg Reporting Service, (y) must be executed with
primary dealers listed by the New York Federal Reserve Board
and rated at least "P1" by Moody's and "A1" by S&P, and
(z) such collateral must be delivered to the Borrower's
custodian.
"Change of Control" means (a) the acquisition by any
"person" or "group" (as such terms are used in Section 13d
and 14(d)(2) of the Securities Exchange Act of 1934) (other
than a Person who is not an Unrelated Person) of beneficial
ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 25% or more of the outstanding
shares of voting stock of the Parent; or (b) during any
period of 12 consecutive calendar months, commencing on or
after the Effective Date, the ceasing of those individuals
(the "Continuing Directors") who (i) were directors of the
Parent on the first day of each such period or (ii)
subsequently became directors of the Parent and whose
initial election or initial nomination for election
subsequent to that date was approved by a majority of the
Continuing Directors then on the board of directors of the
Parent to constitute a majority of the board of directors of
the Parent.
"CNF" means CNF Transportation, Inc., a Delaware
corporation.
"CNF Note" means any promissory note payable by the
Parent to CNF under the Tax Sharing Agreement and any
substitute, replacement or refinancing of any such
promissory note, whether such substitute, replacement or
refinanced promissory note is to CNF or other Persons;
provided that the Parent's obligations under any such
promissory note are subordinated to its obligations under
the Affiliate Guaranty and that the terms and conditions of
such subordination may not be amended, supplemented or
otherwise modified after the date hereof in a manner adverse
to the interests of any of the Lender Parties.
"Commitment" means a Tranche A Revolving Credit
Commitment or a Tranche B Revolving Credit Commitment.
"Confidential Information" means information that the
Borrower furnishes to the Administrative Agent or any Lender
Party, but does not include any such information that is or
becomes generally available to the public other than as a
result of actions or omissions of the Administrative Agent
or any Lender Party or that is or becomes available to the
Administrative Agent or such Lender from a source other than
the Borrower.
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Consolidated EBIT" shall mean, for any period, the sum
of (i) Consolidated Net Income of the Parent and its
Subsidiaries, before total interest expense (whether cash or
non-cash) and provisions for taxes based on income, and
determined without giving effect to any extraordinary gains
or losses but giving effect to gains or losses from sales of
assets sold in the ordinary course of business plus (ii) an
amount not in excess of $15,000,000 related to charges in
connection with the Tax Sharing Agreement plus (iii) any non-
cash charge incurred by the Parent and its Subsidiaries for
the issuance of common shares under the Parent's restricted
stock plan.
"Consolidated EBITDAR" shall mean, for any period,
Consolidated EBIT, adjusted by adding thereto the amount of
all expenses for depreciation, amortization and Consolidated
Rental Expenses that were deducted in determining
Consolidated EBIT for such period.
"Consolidated Funded Indebtedness" means, for any
period, without duplication, the sum of (a) all short term
Debt of the Parent and its Consolidated Subsidiaries
(including the current maturities of long-term Debt) plus
(b) all long-term Debt of the Parent and its Consolidated
Subsidiaries, including obligations in respect of
Capitalized Leases plus (c) the present value (using a
discount rate of 10% per annum) of future payments under
operating leases of the Parent and its Consolidated
Subsidiaries with initial or remaining non-cancellable lease
terms in excess of one year plus (d) the undrawn amount of
all standby letters of credit issued for the account of the
Parent and its Consolidated Subsidiaries, including any
unpaid reimbursement obligations thereunder minus (e) in the
event that the CNF Note is outstanding as of any date of
determination, an amount equal to the lesser of (i)
$40,000,000 and (ii) the outstanding principal amount of the
CNF Note.
"Consolidated Interest and Rental Expense" means, for
any period, total interest expense (including amounts
properly attributable to interest with respect to Capital
Leases in accordance with GAAP, letter of credit costs, and
amortization of debt discount and debt issuance costs) and
Consolidated Rental Expense of the Parent and its
Consolidated Subsidiaries for such period with respect to
all outstanding Debt of the Parent and its Consolidated
Subsidiaries, including without limitation all commissions,
discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net
costs or benefits under interest rate protection agreements.
"Consolidated Net Income" means, for any period, the
net income of the Parent and its Consolidated Subsidiaries
for such period determined in accordance with GAAP provided,
however, that if the Parent shall have acquired the assets
and business of any Person or any substantial part of the
assets and business of any Person, any revenues and expenses
properly attributable to such assets and business or part
thereof prior to the date of such acquisition shall not be
included in Consolidated Net Income.
"Consolidated Rental Expense" means lease payments by
the Parent and its Consolidated Subsidiaries under all
leases having an initial non-cancellable lease term in
excess of one year.
"Consolidated Stockholders' Equity" means, with respect
to any Person at any date, the Consolidated stockholders'
equity of such Person, excluding any amounts attributable to
mandatorily redeemable preferred stock.
"Consolidated Subsidiary" means, as to any Person, at
any date, any Subsidiary or other entity the accounts of
which would be Consolidated with those of such Person in its
Consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Tangible Net Worth" means, for any Person
at any date, the Consolidated Stockholders' Equity of such
Person and its Consolidated Subsidiaries less goodwill and
intangibles determined on a consolidated basis in accordance
with GAAP.
"Consolidated Total Assets" means, as of any date, the
Consolidated total assets of the Parent and its Subsidiaries
as of such date.
"Convert," "Conversion" and "Converted" each refers to
a conversion of Advances of one Type into Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication:
(a) all obligations and liabilities of such Person in
respect of borrowed money, (b) all obligations and
liabilities of such Person in respect of Hedging Contracts,
(c) all Obligations, (d) all obligations and liabilities of
such Person secured by any Lien on the Property of such
Person, even though such Person shall not have assumed or
become liable for the payment thereof; provided, however,
that all such obligations and liabilities which are limited
in recourse to such Property shall be included in Debt only
to the extent of the book value of such Property as would be
shown on a balance sheet of such Person prepared in
accordance with GAAP, (e) all obligations or liabilities
created or arising under any Capital Lease or conditional
sale or other title retention agreement with respect to
Property used or acquired by a Person, even if the rights
and remedies of the lessor, seller or lender thereunder are
limited to repossession of such Property; provided, however,
that all such obligations and liabilities which are limited
in recourse to such Property shall be included in Debt only
to the extent of the book value of such Property as would be
shown on a balance sheet of such Person prepared in
accordance with GAAP, and (f) all obligations and
liabilities under any Guaranty of the foregoing.
"Declining Tranche A Lender" has the meaning set forth
in Section 2.05(c).
"Declining Tranche B Lender" has the meaning set forth
in Section 2.05(d).
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Defaulting Lender" means at any time any Lender with
respect to which a Lender Default is in effect at such time.
"Designated Entity" means any entity identified by the
Borrower to the Administrative Agent in a written notice
delivered prior to the respective Investment in accordance
with Section 5.02.
"Domestic Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as
its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, or such other
office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative
Agent.
"Effective Date" has the meaning specified in
Section 3.01.
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States, or any state
thereof, (b) a commercial bank organized under the laws of
any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, which is acting
through a branch or agency located in the United States;
which, in each case (under clauses (a) and (b) above) has a
combined capital and surplus of at least two hundred million
dollars ($200,000,000), (c) a Person that is primarily
engaged in the business of commercial banking and that is
(i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person
of which a Lender is a Subsidiary, or (iii) a Person of
which a Lender is a Subsidiary, (d) any other Person which
is a "qualified institutional buyer" (as defined in Rule
144A of the Securities Act) which extends credit or buys
loans as one of its businesses, including insurance
companies, investment funds, mutual funds and lease
financing companies, or (e) any Lender and any Affiliate of
any Lender or, with respect to any Lender that is a fund
that invests in loans, any other fund that invests in loans
and is advised or managed by the same investment advisor as
such Lender or by an Affiliate of such Lender.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any violation of an Environmental Law or arising
from alleged injury or threat of injury to health, safety or
the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement,
cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority
or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance that has the force or
effect of law relating to pollution or protection of the
environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Equity Interests" means, with respect to any Person,
all of the shares of capital stock of (or other ownership or
profit interests in) such Person, all of the warrants,
options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of
(or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such
shares (or such other interests), and all of the other
ownership or profit interests in such Person (including,
without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests
are authorized or otherwise existing on any date of
determination.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the Borrower's controlled
group, or under common control with the Borrower, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan
within the following 30 days but only if the PBGC has not
waived the requirements of Section 4043(b) of ERISA with
respect to a contributing sponsor; (b) the application for a
minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of
intent to terminate such Plan in a distress termination
pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the FRB, as in effect from time
to time.
"Eurodollar Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as
its "Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such
other office of such Lender Party as such Lender Party may
from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum (rounded upward to the
nearest 1/100th of 1%) equal to the rate for deposits in
U.S. dollars for the period commencing on the first day of
such Interest Period and ending on the last day of such
Interest Period which appears on Telerate Page 3750 as of
11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. If at least two rates
appear on such Telerate Page for such Interest Period, the
"Eurodollar Rate" shall be the arithmetic mean of such
rates. If the "Eurodollar Rate" cannot be determined in
accordance with the immediately preceding sentences with
respect to any Interest Period, the "Eurodollar Rate" with
respect to each day during such Interest Period shall be
determined by reference to such other publicly available
service for displaying eurodollar rates as may be agreed
upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, the "Eurodollar Rate" shall
instead be the rate per annum equal to the arithmetic mean
(rounded upwards to the nearest 1/100th of 1%) of the
respective rates notified to the Administrative Agent by
each of the Reference Lenders as the rate at which such
Reference Lender is offered Dollar deposits at or about
11:00 A.M., San Francisco 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 Rate
Advances 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 Rate Advance to be outstanding during such
Interest Period.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for
any Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the FRB for determining the maximum
reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Facility" means the Tranche A Revolving Credit
Facility or the Tranche B Revolving Credit Facility.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such
successor, "H.15(519)") for such day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day
such rate is not yet published in H.15(519), the rate for
such day will be the rate set forth in the daily statistical
release designated as the Composite 3:30 P.M. Quotations for
U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including
any such successor, the "Composite 3:30 P.M. Quotation") for
such day under the caption "Federal Funds Effective Rate."
If on any relevant day the appropriate rate for such day is
not yet published in either H.15(519) or the Composite 3:30
P.M. Quotations, the rate for such day will be the
arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 A.M. (New
York time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent.
"Fiscal Year" means the Borrower's fiscal year for
financial accounting purposes. The current Fiscal Year of
the Borrower will end on December 31, 1999.
"FRB" means the Board of Governors of the Federal
Reserve System and any Governmental Authority succeeding to
any of its principal functions.
"Further Taxes" means any and all present or future
taxes, levies, assessments, imposts, duties, deductions,
fees, withholdings or similar charges (excluding net income
taxes and franchise taxes), and all liabilities with respect
thereto, imposed by any jurisdiction on account of amounts
payable or paid pursuant to Section 2.14.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or
government, any state or other political subdivision
thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any
corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" means the Parent and each Subsidiary of the
Borrower incorporated in any jurisdiction within the United
States of America now existing or hereafter acquired or
created and in each case having assets with a book value in
excess of $10,000,000 or annual revenues in excess of
$10,000,000.
"Guaranty" means, with respect to any Person, all
obligations of such Person which in any manner directly or
indirectly guarantee or assure, or in effect guarantee or
assure, the payment or performance of any indebtedness,
dividend or other obligations of any other Person (the
"guaranteed obligations"), or assure or in effect assure the
holder of the guaranteed obligations against loss in respect
thereof, including, without limitation, any such obligations
incurred through an agreement, contingent or otherwise: (a)
to purchase the guaranteed obligations or any property
constituting security therefor, (b) to advance or supply
funds for the purchase or payment of the guaranteed
obligations or to maintain a working capital or other
balance sheet condition, or (c) to lease property or to
purchase any debt or equity securities or other property or
services, but excluding the endorsement for collection of
checks received in the ordinary course of business.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated
as hazardous or toxic or as a pollutant or contaminant under
any Environmental Law.
"Hedging Contract" means any interest rate swap
agreement, currency swap agreement, commodities swap
agreement, equity option or put arrangement, cap, floor or
collar agreement, insurance relating to the respective risk
protection or other similar agreement or arrangement
designed to provide such risk protection.
"Indemnified Liabilities" has the meaning specified in
Section 8.04.
"Index Reference" has the meaning specified in Schedule
II hereto.
"Initial Lenders" has the meaning specified in the
recital of parties to this Agreement.
"Initial Tranche A Lenders" has the meaning specified
in the recital of parties to this Agreement.
"Initial Tranche B Lenders" has the meaning specified
in the recital of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, as to any Eurodollar Rate
Advance, the period commencing on the date of such
Eurodollar Rate Advance or on the date of Conversion of any
Base Rate Advance into such Eurodollar Rate Advance, and
ending on the date one, two, three or six months thereafter
as selected by the Borrower in its Notice of Borrowing or
notice of Conversion and, thereafter, each subsequent period
commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below;
provided that:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, that Interest Period
shall be extended to the following Business Day unless
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 preceding
Business Day;
(ii) any 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 the calendar
month at the end of such Interest Period;
(iii) no Interest Period in respect of a
Tranche A Revolving Credit Advance shall end after the
Tranche A Termination Date and no Interest Period in
respect of a Tranche B Revolving Credit Advance shall
end after the Tranche B Termination Date;
(iv) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the
same Borrowing shall be of the same duration; and
(v) there shall not be more than 10 Interest
Periods applicable to the Tranche A Revolving Credit
Advances at any one time, and there shall not be more
than 10 Interest Periods applicable to the Tranche B
Revolving Credit Advances at any one time.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Investment" in any Person, means any loan or advance
to such Person, any purchase or other acquisition of any
capital stock or other ownership or profit interest,
warrants, rights, options, obligations or other securities
of such Person, any capital contribution to such Person or
any other investment in such Person, and any Guaranty in
respect of obligations of such Person.
"Issuing Bank" has the meaning specified in the recital
of parties to this Agreement and shall include any successor
thereto.
"L/C Amendment Application" means an application form
for amendment of outstanding Letters of Credit as shall at
any time be in use at the Issuing Bank, as the Issuing Bank
shall request.
"L/C Cash Collateral Account" means a cash collateral
account to be established and maintained by the
Administrative Agent, over which the Administrative Agent
shall have sole dominion and control, upon terms as may be
satisfactory to the Administrative Agent.
"L/C Related Documents" has the meaning specified in
Section 2.06(c)(ii)(A).
"Lender Default" means (i) the failure of any Lender to
make any Advance it is obligated to make under the terms of
this Agreement, or (ii) the appointment of a receiver or
conservator with respect to such Lender at the direction or
request of any regulatory agency or authority.
"Lender Party" means any Lender and the Issuing Bank.
"Lender" means each Tranche A Lender and each Tranche B
Lender.
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Lender pursuant to Section 2.03(b).
"Letter of Credit Agreement" has the meaning specified
in Section 2.03(a).
"Letters of Credit" has the meaning specified in
Section 2.01(c).
"Lien" means: (a) any interest in Property securing an
obligation owed to, or a claim by, a Person other than the
owner of such Property, whether such interest is based on
common law, statute, or contract, and including without
limitation, a security interest, charge, claim, or lien
arising from a mortgage, deed of trust, encumbrance, pledge,
hypothecation, assignment, deposit arrangement, agreement,
security agreement, conditional sale or trust receipt or a
lease, consignment or bailment for security purposes (but
excluding any lease, consignment or bailment which is not
for security purposes) and (b) to the extent not included in
clause (a), any reservation, exception, encroachment,
easement, right-of-way, covenant, condition, restriction,
lease or other title exception or encumbrance affecting
Property.
"Loan Documents" means this Agreement, the Notes, if
any, each L/C Related Document, and the Affiliate Guaranty
in each case as amended, supplemented or otherwise modified
from time to time.
"Loan Party" means the Borrower and each Guarantor.
"Margin Stock" means "margin stock" as such term is
defined in Regulation T, U or X of the Federal Reserve
Board.
"Material Adverse Change" means any material adverse
change in the business, condition (financial or otherwise),
operations, performance or properties of the Borrower or the
Parent and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business, condition (financial or
otherwise), operations, performance or properties of the
Borrower or the Parent and its Subsidiaries taken as a
whole, (b) the legality, validity, binding effect, or
enforceability of any Loan Document or (c) the ability of
any Loan Party to perform its obligations in any material
respect under any Loan Document.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to the sale or
issuance of any Equity Interests in any Person, the
aggregate amount of cash received from time to time (whether
as initial consideration or through payment or disposition
of deferred consideration) by or on behalf of such Person
for its own account in connection with any such transaction,
after deducting therefrom (without duplication) only
reasonable and customary underwriting fees and discounts,
legal fees, accounting fees and other similar fees and
reasonable and customary printing expenses and, to the
extent, but only to the extent, that the amounts so deducted
are actually paid (i) at the time of the receipt of such
cash or (ii) if later, within 30 days after the consummation
of such transaction (based on such Person's reasonable
estimate of the aggregate amount of all such discounts,
fees, costs and expenses therefor at the time of the
consummation of such transaction); provided, however, that,
notwithstanding any of the foregoing provisions of this
definition, (A) any and all amounts so deducted by any such
Person pursuant to this definition shall be properly
attributable to the transaction and shall be payable solely
to one or more Persons that are not Affiliates of such
Person or of any of the Loan Parties or any Affiliate of any
of the Loan Parties and (B) if, at the time any of the
discounts, fees, costs or expenses referred to in this
definition are actually paid or otherwise satisfied, the
reserve therefor or the amount otherwise retained by such
Person for the payment or satisfaction thereof exceeds the
amount so paid or otherwise satisfied, then the amount of
such excess reserve or retained amount, as the case may be,
shall constitute "Net Cash Proceeds" on and as of the date
of such payment or other satisfaction for all purposes of
this Agreement.
"Note" has the meaning specified in Section 2.18.
"Notice of Borrowing" has the meaning specified in
Section 2.02.
"Obligations" means all present and future loans,
advances, liabilities, obligations, covenants, duties, and
debts owing by any Loan Party to the Administrative Agent
and/or any Lender Party, arising under or pursuant to this
Agreement or any of the other Loan Documents, whether or not
evidenced by any note, or other instrument or document,
whether arising from an extension of credit, opening of a
letter of credit, acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect
(including, without limitation, those acquired by assignment
from others, and any participation by the Administrative
Agent and/or any Lender Party in such Loan Party's debts
owing to others), absolute or contingent, due or to become
due, primary or secondary, as principal or guarantor, and
including, without limitation, all principal, interest,
charges, expenses, fees, attorneys' fees, filing fees and
any other sums chargeable to such Loan Party hereunder or
under any of the other Loan Documents. "Obligations"
includes, without limitation, all debts, liabilities, and
obligations now or hereafter owing from any Loan Party to
the Administrative Agent and/or any Lender Party under or in
connection with the Letters of Credit.
"Other Taxes" means any present or future stamp, court
or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect
to, this Agreement or any other Loan Documents.
"Parent" means Consolidated Freightways Corporation,
the sole shareholder of the Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"Permitted Liens" means:
(a) Liens for taxes not delinquent;
(b) statutory Liens for taxes in an aggregate
amount not to exceed $5,000,000 at any time provided that
the payment of such taxes which are due and payable is being
contested in good faith and by appropriate proceedings
diligently pursued and as to which adequate financial
reserves have been established on a Loan Party's books and
records and a stay of enforcement of any such Lien is in
effect;
(c) deposits under worker's compensation,
unemployment insurance, social security and other similar
laws, or to secure the performance of bids, tenders or
contracts (other than for the repayment of borrowed money)
or to secure indemnity, performance or other similar bonds
for the performance of bids, tenders or contracts (other
than for the repayment of borrowed money) or to secure
statutory obligations (other than Liens arising under ERISA
or Liens in favor of any Governmental Authority for any
liability under any Environmental Laws or for any damages
arising from or costs incurred by such Governmental
Authority in connection with, any Environmental Action) or
surety or appeal bonds, or to secure indemnity, performance
or other similar bonds in the ordinary course of business;
(d) Liens securing the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons, provided that the payment thereof is
not at the time required by Section 5.01(f);
(e) reservations, exceptions, encroachments,
easements, rights of way, covenants running with the land,
and other similar title exceptions or encumbrances affecting
any real estate in which the respective Loan Party has an
interest; provided that they do not in the aggregate
materially detract from the value of such real estate or
materially interfere with its use in the ordinary conduct of
such Loan Party's business;
(f) judgment and other similar Liens arising in
connection with court proceedings, provided that (i) the
existence of such Liens is being contested in good faith and
by proper proceedings diligently pursued, (ii) reserves or
other appropriate provision, if any, as are required by GAAP
have been made therefor, (iii) a stay of enforcement of any
such Liens is in effect, and (iv) the existence of any
judgment or court proceedings upon which such Liens are
based does not otherwise constitute an Event of Default
hereunder;
(g) Liens in existence on the date of this
Agreement which are set forth in Schedule III hereto; and
(h) Liens upon or in any property acquired or
held by any Loan Party to secure the purchase price or
construction costs (and, to the extent financed, sales and
excise taxes, delivery and installation costs and other
related expenses) of such property or to secure indebtedness
incurred solely for the purpose of financing or refinancing
the acquisition or construction of any such property to be
subject to such Liens, or Liens existing on any such
property at the time of acquisition, or extensions, renewals
or replacements of any of the foregoing for the same or a
lesser amount, provided that such Lien is established within
thirty days of the acquisition of said property or
expenditure of said construction costs, and provided,
further, that no such Lien shall extend to or cover any
property other than the property being acquired and no such
extension, renewal or replacement shall extend to or cover
any property not theretofore subject to the Lien being
extended, renewed or replaced, and provided, further, that
the incurrence of any Debt secured by the Liens permitted by
this clause (h) shall not exceed the amount then allowed
under any of the covenants set forth in Section 5.03.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Pricing Index" has the meaning specified in Schedule
II hereto.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Pro Rata Share" means, as to any Lender at any time,
the percentage equivalent at such time of such Lender's
Tranche B Revolving Credit Commitment divided by the
aggregate Tranche B Revolving Credit Commitments, or, if the
Tranche B Revolving Credit Commitments have expired or been
terminated, the percentage equivalent at such time of the
outstanding amount of such Lender's Tranche B Revolving
Credit Advances divided by the aggregate outstanding amount
of all Tranche B Revolving Credit Advances.
"Real Estate" means all of the present and future
interests of any Person, as owner, lessee, or otherwise, in
real property, including, without limitation, any interest
arising from an option to purchase or lease any such real
property.
"Reference Lenders" means ABN AMRO Bank N.V. and Bank
One, NA or each such other Lender Party as may be agreed by
the Borrower and the Administrative Agent from time to time.
"Register" has the meaning specified in
Section 8.07(d).
"Request for Letter of Credit Issuance" has the meaning
specified in Section 2.03(a).
"Required Lenders" means at any time Lenders owed at
least a majority in interest of the then aggregate unpaid
principal amount of the Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at
least a majority in interest of the Commitments.
"Required Tranche B Lenders" means at any time Tranche
B Lenders owed at least a majority in interest of the then
aggregate unpaid principal amount of the Tranche B Revolving
Credit Advances owing to Tranche B Lenders, or, if no such
principal amount is then outstanding, Tranche B Lenders
having at least a majority in interest of the Tranche B
Revolving Credit Commitments.
"Responsible Officer" means the chief financial
officer, treasurer or controller of the respective Person.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
"Securities Act" means the Securities Act of 1933, as
amended, or any successor Federal statute, and the rules and
regulations of the Securities and Exchange Commission
promulgated thereunder, all as the same shall be in effect
from time to time.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any ERISA
Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subordinated Debt" means any Debt that is subordinate
in right of payment to the Obligations, including, without
limitation, the CNF Note.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries; provided that the term "Subsidiary" shall not
include any Designated Entity that would otherwise have
constituted a Subsidiary hereunder.
"Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of each Lender Party
and the Administrative Agent, respectively, taxes imposed on
or measured by its overall net income by the jurisdiction
(or any political subdivision thereof) under the laws of
which such Lender Party or the Administrative Agent, as the
case may be, is organized and, in the case of each Lender
Party, where an Applicable Lending Office is maintained.
"Tax Sharing Agreement" means that certain Tax Sharing
Agreement dated December 2, 1996 between the Parent and CNF,
as it may be amended from time to time.
"Tranche A Lenders" means, at any time, any of the
Lenders that has a Tranche A Revolving Credit Commitment or
any outstanding Tranche A Revolving Credit Advance at such
time.
"Tranche A Revolving Credit Advance" has the meaning
specified in Section 2.01(a).
"Tranche A Revolving Credit Commitment" means, with
respect to any Tranche A Lender at any time, the amount set
forth opposite such Tranche A Lender's name on Schedule I
hereto under the caption "Tranche A Revolving Credit
Commitment" or, if such Tranche A Lender has entered into
one or more Assignments and Acceptances, set forth for such
Tranche A Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such
Tranche A Lender's "Tranche A Revolving Credit Commitment,"
as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Tranche A Revolving Credit Facility" means, at any
time, the aggregate amount of the Lenders' Tranche A
Revolving Credit Commitments at such time.
"Tranche A Termination Date" means October 10, 2000, as
such date may be extended pursuant to Section 2.05(c), or
the earlier date of termination in whole of the Tranche A
Revolving Credit Commitments pursuant to Section 2.05 or
6.01.
"Tranche B Lenders" means, at any time, any of the
Lenders that has a Tranche B Revolving Credit Commitment or
any outstanding Tranche B Revolving Credit Advance at such
time.
"Tranche B Revolving Credit Advance" has the meaning
specified in Section 2.01(b).
"Tranche B Revolving Credit Commitment" means, with
respect to any Tranche B Lender at any time, the amount set
forth opposite such Tranche B Lender's name on Schedule I
hereto under the caption "Tranche B Revolving Credit
Commitment" or, if such Tranche B Lender has entered into
one or more Assignments and Acceptances, set forth for such
Tranche B Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such
Tranche B Lender's "Tranche B Revolving Credit Commitment,"
as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Tranche B Revolving Credit Facility" means, at any
time, the aggregate amount of the Tranche B Lenders' Tranche
B Revolving Credit Commitments at such time.
"Tranche B Termination Date" means October 11, 2002, as
such date may be extended pursuant to Section 2.05(d), or
the earlier date of termination in whole of the Tranche B
Revolving Credit Commitments pursuant to Section 2.05 or
6.01.
"Type" refers to the distinction between Advances
bearing interest at the Base Rate and Advances bearing
interest at the Eurodollar Rate.
"Unrelated Person" means any Person other than (a) a
Subsidiary of the Parent or (b) an employee stock ownership
plan or other employee benefit plan covering the employees
of the Parent or its Subsidiaries.
"Unused Tranche A Revolving Credit Commitment" means,
with respect to any Tranche A Lender at any time,
(a) such Tranche A Lender's Tranche A
Revolving Credit Commitment at such time minus
(b) the aggregate principal amount of all
Tranche A Revolving Credit Advances made by such
Tranche A Lender, in each case in its capacity as a
Tranche A Lender, and outstanding at such time.
"Unused Tranche B Revolving Credit Commitment" means,
with respect to any Tranche B Lender at any time,
(a) such Tranche B Lender's Tranche B
Revolving Credit Commitment at such time minus
(b) the sum of (i) the aggregate principal
amount of all Tranche B Revolving Credit Advances made
by such Tranche B Lender and outstanding at such time,
plus (ii) such Tranche B Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate
principal amount of all Letter of Credit Advances made
by the Issuing Bank pursuant to Section 2.03(b) and
outstanding at such time other than any such Letter of
Credit Advance which, at or prior to such time, has
been assigned in part to such Tranche B Lender pursuant
to Section 2.03(b).
"Utilization Fee" means, as of any date of
determination, a percentage per annum determined as set
forth on Schedule II hereto.
"Voting Interests" means shares of capital stock issued
by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence
of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by
the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in
Part I of Subtitle E of Title IV of ERISA.
"Year 2000 Compliant" has the meaning specified in
Section 4.01(j).
"Year 2000 Problem" has the meaning specified in
Section 4.01(j).
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding."
SECTION 1.03. Accounting Terms. Unless the context
otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with
generally accepted accounting principles consistent with those
applied in the preparation of financial statements referred to in
Section 4.01(e) ("GAAP"). If GAAP changes during the term of
this Agreement such that any covenants contained herein would
then be calculated in a different manner or with different
components, the Borrower, the Lender Parties and the
Administrative Agent agree to negotiate in good faith to amend
this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating the Borrower's financial
condition to substantially the same criteria as were effective
prior to such change in GAAP; provided, however, that, until the
Borrower, the Lender Parties and the Administrative Agent have so
amended this Agreement, all such covenants shall be calculated in
accordance with GAAP as in effect immediately prior to such
change.
SECTION 1.04. Other Interpretive Provisions. (a) The
meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar
words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The term "including" is not limiting and means
"including without limitation."
(d) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including" the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including."
(e) "issue" means, with respect to any Letter of
Credit, to issue or to extend the expiry of, or to renew or
increase the amount, or otherwise amend to change any other term
of, such Letter of Credit; and the terms "issued," "issuing" and
"issuance" have corresponding meanings.
(f) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) Tranche A Revolving
Credit Advances. Each Tranche A Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances
(each a "Tranche A Revolving Credit Advance") to the Borrower
from time to time on any Business Day during the period from the
Effective Date until the Tranche A Termination Date in an
aggregate amount for each such Advance not to exceed such Tranche
A Lender's Unused Tranche A Revolving Credit Commitment at such
time. Each Borrowing shall be in an aggregate amount of
$2,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Advances of the same Type made on
the same day by the Tranche A Lenders ratably according to their
respective Tranche A Revolving Credit Commitments. Within the
limits of each Tranche A Lender's Tranche A Revolving Credit
Commitment, the Borrower may borrow under this Section 2.01(a),
prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(a).
(b) Tranche B Revolving Credit Advances. Each Tranche B
Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances (each a "Tranche B Revolving Credit
Advance") to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Tranche B
Termination Date in an aggregate amount for each such Advance not
to exceed such Tranche B Lender's Unused Tranche B Revolving
Credit Commitment at such time. Each Borrowing shall be in an
aggregate amount of $2,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Advances of the
same Type made on the same day by the Tranche B Lenders ratably
according to their respective Tranche B Revolving Credit
Commitments. Within the limits of each Tranche B Lender's
Tranche B Revolving Credit Commitment, the Borrower may borrow
under this Section 2.01(b), prepay pursuant to Section 2.10 and
reborrow under this Section 2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the
terms and conditions hereinafter set forth and subject to such
other terms as the Issuing Bank may separately and mutually agree
with the Borrower, to issue letters of credit (the "Letters of
Credit") for the account of the Borrower from time to time on any
Business Day during the period from the Effective Date until 90
days before the Tranche B Termination Date in an aggregate
Available Amount for all Letters of Credit issued by the Issuing
Bank not to exceed at any time the aggregate Unused Tranche B
Revolving Credit Commitment at such time. No Letter of Credit
shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the
Tranche B Termination Date. Subject to the limits referred to
above, the Borrower may request the issuance of Letters of Credit
under this Section 2.01(c), repay any Letter of Credit Advances
resulting from drawings thereunder pursuant to Sections 2.03(b)
and 2.10 and request the issuance of additional Letters of Credit
under this Section 2.01(c). Each Letter of Credit issued
pursuant to this Section 2.01(c) shall, effective upon its
issuance and without further action, be issued on behalf of all
Tranche B Lenders (including the Issuing Bank) according to their
respective Pro Rata Shares. Each Tranche B Lender shall, to the
extent of its Pro Rata Share, be deemed irrevocably to have
participated in the issuance of such Letter of Credit and shall
reimburse the Issuing Bank promptly for Letter of Credit Advances
in accordance with Section 2.03.
SECTION 2.02. Making the Advances. (a) Each
Borrowing shall be made on notice, received not later than 10:00
A.M. (San Francisco time) on the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or not later than 10:00
A.M. (San Francisco time) on the date of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Advances, by
the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed promptly
in writing, or telecopier, in substantially the form of Exhibit B-
1 hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Tranche and Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, (iv) in the
case of a Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Advance and (v) the
Borrower's deposit account into which funds for such Advance are
to be deposited (the "Borrower's Designated Account"). Each
Lender shall, before 11:00 A.M. (San Francisco time) on the date
of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's
ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such
Lender and the other Lenders. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower in the Borrower's
Designated Account selected by the Borrower in the applicable
Notice of Borrowing; provided, however, that, in the case of any
Tranche A Revolving Credit Advance or Tranche B Revolving Credit
Advance, the Administrative Agent shall first make a portion of
such funds equal to the aggregate principal amount of any Letter
of Credit Advances made by the Issuing Bank and by any other
Tranche B Lender and outstanding on the date of such Tranche A
Revolving Credit Advance or Tranche B Revolving Credit Advance,
as applicable, plus interest accrued and unpaid thereon to and as
of such date, available to the Issuing Bank, and such other
Tranche B Lenders for repayment of such Letters of Credit
Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate
Advances for the initial Borrowing hereunder (if the initial
Borrowing occurs on, or within 3 Business Days after, the
Effective Date) or for any Borrowing if the aggregate amount of
such Borrowing is less than $2,000,000 or if the obligation of
the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including,
without limitation, any actual loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Advance to be made by
such Lender as part of such Borrowing when such Advance, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Borrowing, the Administrative
Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such
ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing (and such interest shall be in
lieu of, and not in addition to, interest otherwise owed by the
Borrower in respect of such corresponding amount in accordance
with Section 2.07(a) hereof) and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement and the Borrower's
obligation to make repayment in respect thereof shall terminate.
(e) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance
on the date of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings Under Letters
of Credit. (a) Request for Issuance. Each Letter of Credit
shall be issued upon notice, received not later than 11:00 A.M.
(San Francisco time) on the third Business Day prior to the date
of the proposed issuance of such Letter of Credit, by the Issuing
Bank with a copy to the Administrative Agent. Each notice of
issuance of a Letter of Credit (a "Request for Letter of Credit
Issuance") shall be by telephone, confirmed promptly in writing,
or telecopier, in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (A) date of such issuance (which
shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit (which,
subject to Section 2.01 (c), shall be no later than one year from
the date of such issuance), (D) name and address of the
beneficiary of such Letter of Credit, and (E) form of such Letter
of Credit, and shall be accompanied by such application and
agreement for letter of credit as the Issuing Bank may specify to
the Borrower for use in connection with such requested Letter of
Credit (a "Letter of Credit Agreement"). If (x) the requested
form of such Letter of Credit is acceptable to the Issuing Bank
in its sole discretion and (y) it has not received written notice
from the Administrative Agent or the Required Tranche B Lenders
that the conditions to issuing such Letter of Credit have not
been satisfied or duly waived, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article
III, make such Letter of Credit available to the Borrower at the
office of the Issuing Bank referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of
any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Drawing. The payment by the Issuing Bank of a demand
for payment under any Letter of Credit shall constitute for all
purposes of this Agreement the making by the Issuing Bank of a
Letter of Credit Advance, which shall be a Base Rate Advance, in
the amount of such demand. Upon written demand by the Issuing
Bank, with a copy of such demand to the Administrative Agent,
each Tranche B Lender shall purchase from the Issuing Bank, and
the Issuing Bank shall sell and assign to each such Tranche B
Lender, such Tranche B Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such
purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the
Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance to
be purchased by such Tranche B Lender. Promptly after receipt
thereof, the Administrative Agent shall transfer such funds to
the Issuing Bank. The Borrower hereby agrees to each such sale
and assignment. Each Tranche B Lender agrees to purchase its Pro
Rata Share of an outstanding Letter of Credit Advance on (i) the
Business Day on which demand therefor is made by the Issuing
Bank, provided notice of such demand is given not later than
11:00 A.M. (San Francisco time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by the
Issuing Bank to any other Tranche B Lender of a portion of a
Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Tranche B Lender that the Issuing Bank is
the legal and beneficial owner of such interest being assigned by
it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with
respect to such Letter of Credit Advance or the Loan Documents.
If and to the extent that any Tranche B Lender shall not have so
made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Tranche B Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by
the Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account
or the account of the Issuing Bank, as applicable. If such
Tranche B Lender shall pay to the Administrative Agent such
amount for the account of the Issuing Bank on any Business Day,
such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Tranche B Lender on such
Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by the
Issuing Bank shall be reduced by such amount on such Business
Day.
(c) Failure to Make Letter of Credit Advances. The failure
of any Tranche B Lender to make the Letter of Credit Advance to
be made by it on the date specified in Section 2.03(b) shall not
relieve any other Tranche B Lender of its obligation hereunder to
make its Letter of Credit Advance on such date, but no Tranche B
Lender shall be responsible for the failure of any other Tranche
B Lender to make the Letter of Credit Advance to be made by such
other Tranche B Lender on such date.
(d) From time to time while a Letter of Credit is
outstanding and prior to the Tranche B Termination Date, the
Issuing Bank will, upon the written request of the Borrower
received by the Issuing Bank (with a copy sent by the Borrower to
the Administrative Agent) at least three days (or such shorter
time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of amendment,
amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile,
confirmed promptly in an original writing, made in the form of an
L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of
Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as the Issuing
Bank may require. The Issuing Bank shall be under no obligation
to amend any Letter of Credit if: (A) the Issuing Bank would
have no obligation at such time to issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the
proposed amendment to the Letter of Credit. The Administrative
Agent will promptly notify the Tranche B Lenders and the Issuing
Bank of the receipt by it of any L/C Amendment Application.
(e) The Issuing Bank and the Tranche B Lenders agree that,
while a Letter of Credit is outstanding and prior to the Tranche
B Termination Date, at the option of the Borrower and upon the
written request of the Borrower received by the Issuing Bank
(with a copy sent by the Borrower to the Administrative Agent) at
least three days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion) prior to
the proposed date of notification of renewal, the Issuing Bank
shall be entitled to authorize the renewal of any Letter of
Credit issued by it. Each such request for renewal of a Letter
of Credit shall be made by facsimile, confirmed promptly in an
original writing, in the form of an L/C Amendment Application,
and shall specify in form and detail satisfactory to the Issuing
Bank: (i) the Letter of Credit to be renewed; (ii) the proposed
date of notification of renewal of the Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of the
Letter of Credit; and (iv) such other matters as the Issuing Bank
may require. The Issuing Bank shall be under no obligation so to
renew any Letter of Credit if: (A) the Issuing Bank would have
no obligation at such time to issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of such Letter of Credit does not accept the
proposed renewal of such Letter of Credit. If any outstanding
Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the
Issuing Bank that such Letter of Credit shall not be renewed, and
if at the time of renewal the Issuing Bank would be entitled to
authorize the automatic renewal of such Letter of Credit in
accordance with this clause (f) upon the request of the Borrower
but the Issuing Bank shall not have received any L/C Amendment
Application from the Borrower with respect to such renewal or
other written direction by the Borrower with respect thereto, the
Issuing Bank shall nonetheless be permitted to allow such Letter
of Credit to renew, and the Borrower and the Tranche B Lenders
hereby authorize such renewal, and, accordingly, the Issuing Bank
shall be deemed to have received an L/C Amendment Application
from the Borrower requesting such renewal.
(f) The Issuing Bank may, at its election (or as required
by the Administrative Agent at the direction of the Required
Tranche B Lenders), deliver any notices of termination or other
communications to any Letter of Credit beneficiary or transferee,
and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of
such Letter of Credit to be a date not later than the Tranche B
Termination Date.
(g) This Agreement shall control in the event of any
conflict with any L/C Related Document (other than any Letter of
Credit).
SECTION 2.04. Fees. (a) Facility Fees. The Borrower
agrees to pay a facility fee to the Administrative Agent (i) for
the account of each Tranche A Lender, from the Effective Date
until the Tranche A Termination Date at a rate per annum equal to
the Applicable Percentage in effect from time to time multiplied
by the Tranche A Revolving Credit Commitment of such Tranche A
Lender in effect from time to time, payable in arrears quarterly
on the fifteenth day of each January, April, July and October,
commencing January 15, 2000, and on the Tranche A Termination
Date and (ii) for the account of each Tranche B Lender, from the
Effective Date until the Tranche B Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to
time multiplied by the Tranche B Revolving Credit Commitment of
such Tranche B Lender in effect from time to time, payable in
arrears quarterly on the fifteenth day of each January, April,
July and October, commencing January 15, 2000, and on the Tranche
B Termination Date.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall
pay to the Administrative Agent for the account of each Tranche B
Lender a fee, payable in arrears quarterly on the fifteenth day
of each January, April, July and October, commencing January 15,
2000, and on the Tranche B Termination Date, on such Tranche B
Lender's Pro Rata Share of the average daily aggregate Available
Amount during such quarter at a rate per annum equal to the
Applicable Margin for Eurodollar Rate Advances, in each case
determined in respect of each Letter of Credit as of the date of
issuance of such Letter of Credit.
(ii) Issuing Bank's Fees. The Borrower shall pay to
the Issuing Bank, for its own account, such commissions,
issuance fees, fronting fees, transfer fees and other fees
and charges in connection with the issuance or
administration of each Letter of Credit as agreed in a
letter between the Issuing Bank and the Borrower dated
August 20, 1999 and accepted by the Borrower as of August
24, 1999.
(c) Administrative Agent's Fees. The Borrower shall pay to
the Administrative Agent for its own account such fees as agreed
in a letter between the Administrative Agent and the Borrower
dated August 20, 1999 and accepted by the Borrower as of August
24, 1999.
SECTION 2.05. Termination or Reduction of the
Commitments; Extension of the Facilities. (a) The Borrower shall
have the right, upon at least three (3) Business Days' notice to
the Administrative Agent, to terminate in whole or reduce ratably
in part the unused portions of the respective Tranche A Revolving
Credit Commitments of the Tranche A Lenders; provided that each
partial reduction (i) shall be in the aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Tranche A
Lenders in accordance with their Tranche A Revolving Credit
Commitments with respect to the Tranche A Revolving Credit
Facility. Any Tranche A Revolving Credit Commitments terminated
under this Section 2.05 may not be reinstated.
(b) The Borrower shall have the right, upon at least three
(3) Business Days' notice to the Administrative Agent, to
terminate in whole or reduce ratably in part the unused portions
of the respective Tranche B Revolving Credit Commitments of the
Tranche B Lenders; provided that each partial reduction (i) shall
be in the aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and (ii) shall be made ratably
among the Tranche B Lenders in accordance with their Tranche B
Revolving Credit Commitments with respect to the Tranche B
Revolving Credit Facility. Any Tranche B Revolving Credit
Commitments terminated under this Section 2.05 may not be
reinstated.
(c) At any time not earlier than 90 days prior to, nor
later than 45 days prior to, the Tranche A Termination Date then
in effect, the Borrower may request that the Tranche A Lenders
extend the then scheduled Tranche A Termination Date to the date
which is 364 days following such Tranche A Termination Date. If
such request is made by the Borrower, each Tranche A Lender shall
inform the Administrative Agent of its willingness to extend the
Tranche A Termination Date no later than 21 days after the date
of such request. Any Tranche A Lender's failure to respond by
such
date shall be deemed that it does not agree to such requested
extension. If all Tranche A Lenders consent to such requested
extension, the Tranche A Termination Date shall be so extended
for such 364-day period. If any Tranche A Lender (a "Declining
Tranche A Lender") does not agree to such requested extension,
then, at the election of the Borrower as notified to the
Administrative Agent no later than 15 days prior to such Tranche
A Termination Date, (i) the Tranche A Termination Date shall not
be so extended or (ii) the Tranche A Termination Date shall be so
extended for such 364-day period and either (x) the Borrower
shall substitute for such Declining Tranche A Lender another
financial institution in accordance with the terms and conditions
of Section 2.17 and 8.07 (except that such financial institution
shall only be assigned the Tranche A Revolving Credit Advances
and Tranche A Revolving Credit Commitment of such Declining
Tranche A Lender) or (y) such Declining Tranche A Lender's
Tranche A Revolving Credit Commitment shall terminate on the
Tranche A Termination Date as scheduled prior to such extension,
and on such Tranche A Termination Date the Borrower shall repay
in full the principal amount of Tranche A Revolving Credit
Advances owing to such Declining Tranche A Lender, together with
accrued interest thereon to the date of payment of such principal
amount, all fees payable to such Declining Tranche A Lender and
all other amounts payable to such Declining Tranche A Lender
hereunder (with the percentages of the Tranche A Revolving Credit
Commitments of the other Tranche A Lenders adjusted to reflect
such termination and repayment).
(d) At any time not earlier than 90 days prior to, nor
later than 45 days prior to, the Tranche B Termination Date then
in effect, the Borrower may request that the Tranche B Lenders
extend the then scheduled Tranche B Termination Date to the date
one year from such Tranche B Termination Date. If such request
is made by the Borrower, each Tranche B Lender shall inform the
Administrative Agent of its willingness to extend the Tranche B
Termination Date no later than 21 days after the date of such
request. Any Tranche B Lender's failure to respond by such date
shall be deemed that it does not agree to such requested
extension. If all Tranche B Lenders consent to such requested
extension, the Tranche B Termination Date shall be so extended
for such one year period. If any Tranche B Lender (a "Declining
Tranche B Lender") does not agree to such requested extension,
then, at the election of the Borrower as notified to the
Administrative Agent no later than 15 days prior to such Tranche
B Termination Date, (i) the Tranche B Termination Date shall not
be so extended or (ii) the Tranche B Termination Date shall be so
extended for such one year period and either (x) the Borrower
shall substitute for such Declining Tranche B Lender another
financial institution in accordance with the terms and conditions
of Section 2.17 and 8.07 (except that such financial institution
shall only be assigned the Tranche B Revolving Credit Advances
and Tranche B Revolving Credit Commitment of such Declining
Tranche B Lender) or (y) such Declining Tranche B Lender's
Tranche B Revolving Credit Commitment shall terminate on the
Tranche B Termination Date as scheduled prior to such extension,
and on such Tranche B Termination Date the Borrower shall repay
in full the principal amount of Tranche B Revolving Credit
Advances owing to such Declining Tranche B Lender, together with
accrued interest thereon to the date of payment of such principal
amount, all fees payable to such Declining Tranche B Lender and
all other amounts payable to such Declining Tranche B Lender
hereunder (with the percentages of the Tranche B Revolving Credit
Commitments of the other Tranche B Lenders adjusted to reflect
such termination and repayment).
SECTION 2.06. Repayment. (a) Tranche A Revolving
Credit Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Tranche A Lenders on the
Tranche A Termination Date the aggregate principal amount of the
Tranche A Revolving Credit Advances then outstanding.
(b) Tranche B Revolving Credit Advances. The Borrower
shall repay to the Administrative Agent for the ratable account
of the Tranche B Lenders on the Tranche B Termination Date the
aggregate principal amount of the Tranche B Revolving Credit
Advances then outstanding.
(c) Letter of Credit Advances. (i) The Borrower shall
repay to the Administrative Agent for the account of the Issuing
Bank and each other Tranche B Lender that has made a Letter of
Credit Advance on the earlier of demand and the Tranche B
Termination Date the outstanding principal amount of each Letter
of Credit Advance made by each of them.
(ii) The obligations of the Borrower under this
Agreement, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit
shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement,
such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without
limitation, the following circumstances (it being understood
that any such payment by the Borrower is without prejudice
to, and does not constitute a waiver of, any rights the
Borrower might have or might acquire as a result of the
payment by the Issuing Bank of any demand for payment or the
reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any
Loan Document, any Letter of Credit Agreement, any
Letter of Credit or any other agreement or instrument
relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Borrower in respect of any L/C
Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C
Related Documents;
(C) the existence of any claim, set-off, defense
or other right that the Borrower may have at any time
against any beneficiary or any transferee of a Letter
of Credit (or any Persons for whom any such beneficiary
or any such transferee may be acting), the Issuing Bank
or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents
or any unrelated transaction;
(D) any statement or any other document presented
under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect;
(E) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or certificate
that does not strictly comply with the terms of such
Letter of Credit;
(F) any exchange, release or non-perfection of
any collateral, or any release or amendment or waiver
of or consent to departure from any guaranty, for all
or any of the obligations of the Borrower in respect of
the L/C Related Documents; or
(G) any other circumstance or happening
whatsoever, whether or not similar to any of the
foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a
guarantor.
SECTION 2.07. Interest. (a) Scheduled Interest. The
Borrower shall pay interest on the unpaid principal amount of
each Advance owing to each Lender from the date of such Advance
until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at
all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin (plus
Utilization Fee, if applicable) in effect from time to time,
payable in arrears quarterly on the fifteenth day of each
January, April, July and October during such periods.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of (x) the Eurodollar Rate for such
Interest Period for such Advance plus (y) the Applicable
Margin (plus Utilization Fee, if applicable) in effect from
time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration
of more than three months, on each day that occurs during
such Interest Period every three months from the first day
of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the
Borrower shall pay interest on (i) the unpaid principal amount of
each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Lender agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar
Rate when necessary to determine the Eurodollar Rate. If any one
or more of the Reference Lenders shall not furnish such timely
information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Lenders. The
Administrative Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a)(i) or (ii),
and the rate, if any, furnished by each Reference Lender for the
purpose of determining the interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to each of such Required Lenders
of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing
Interest Period therefor, be continued as Eurodollar Rate
Advances for an Interest Period of the same duration as the
Interest Period ending on such last day.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall
be reduced, by payment or prepayment or otherwise, to less than
$2,000,000, such Advances shall automatically Convert into Base
Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Optional Conversion of Advances. The
Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 10:00 A.M. (San Francisco
time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not
less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Advances
to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Optional Prepayments. The Borrower may,
upon at least three Business Days' notice in the case of
Eurodollar Rate Advances and one Business Day's notice in the
case of Base Rate Advances, in each case to the Administrative
Agent by no later than 10:00 A.M. (San Francisco time) stating
the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall,
prepay the outstanding principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in
part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however,
that in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(d). Each such
prepayment shall be applied ratably to the principal installments
thereof.
SECTION 2.11. Increased Costs and Reduction of Return.
(a) If any Lender Party determines that, due to either (i) the
introduction of or any change in the interpretation of any law or
regulation (in each case after the date hereof) or (ii) the
compliance by that Lender Party with any guideline or request (in
each case after the date hereof) from any central bank or other
Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to such Lender Party of
agreeing to make or making, funding or maintaining any Eurodollar
Rate Advances, then the Borrower shall be liable for, and shall
from time to time, upon demand (with a copy of such demand to be
sent to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender Party, additional amounts as
are sufficient to compensate such Lender Party for such increased
costs.
(b) If any Lender Party determines that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by the Lender Party or any corporation or other
entity controlling the Lender Party with any Capital Adequacy
Regulation (in each case after the date hereof), affects or would
affect the amount of capital required or expected to be
maintained by the Lender Party or any corporation or other entity
controlling the Lender Party and (taking into consideration such
Lender Party's or such corporation's or other entity's policies
with respect to capital adequacy and such Lender Party's desired
return on capital) determines that the amount of such capital is
increased as a consequence of its Commitments, loans, credits or
obligations hereunder, then, upon demand of such Lender Party to
the Borrower through the Administrative Agent, the Borrower shall
pay to the Lender Party, from time to time as specified by the
Lender Party, additional amounts sufficient to compensate the
Lender Party for such increase.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender Party shall notify the
Administrative Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that
it is unlawful, for any Lender Party or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar
Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) each Eurodollar Rate Advance will automatically,
upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lender Parties to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lender
Parties that the circumstances causing such suspension no longer
exist.
SECTION 2.13. Payments and Computations. (a) The
Borrower shall make each payment, without setoff, counterclaim,
recoupment or other deduction, hereunder and under the Notes, if
any, not later than 11:00 A.M. (San Francisco time) on the day
when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or
interest or facility fees or letter of credit commissions ratably
(other than amounts payable pursuant to Section 2.05(c), 2.05(d),
2.11, 2.14, 2.17, 2.19 or 8.04(d)) to the Lenders for the account
of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender
Party to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment
and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(d), from and after the
effective date specified in such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under
the Notes, if any, in respect of the interest assigned thereby to
the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if
and to the extent payment owed to such Lender Party is not made
when due hereunder or under the Note, if any, held by such Lender
Party, to charge from time to time against any or all of the
Borrower's accounts with such Lender Party any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate
and of Letter of Credit commissions and of fees, including
facility fees under Section 2.04(a), shall be made by the
Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by
the Administrative Agent of an interest rate, fee or commission
hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes, if
any, shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in
the computation of payment of interest or facility fee, as the
case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment
is due to the Lenders hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that
the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Borrower shall pay all Other
Taxes.
(b) If the Borrower shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in
respect of any sum payable hereunder to any Lender Party or the
Administrative Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section), such Lender
Party or the Administrative Agent, as the case may be,
receives and retains an amount equal to the sum it would
have received and retained had no such deductions or
withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings; and
(iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or
other authority in accordance with applicable law.
(c) The Borrower agrees to indemnify and hold harmless each
Lender Party and the Administrative Agent for the full amount of
(i) Taxes, (ii) Other Taxes, and (iii) Further Taxes imposed on
or paid by such Lender Party or the Administrative Agent (as the
case may be) and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes
were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date such
Lender Party or the Administrative Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the
Borrower of Taxes, Other Taxes or Further Taxes, the Borrower
shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of
a receipt evidencing payment thereof, or other evidence of
payment satisfactory to such Administrative Agent. In the case
of any payment hereunder by or on behalf of the Borrower through
an account or branch outside the United States or by or on behalf
of the Borrower by a payor that is not a United States person, if
the Borrower determines that no Taxes are payable in respect
thereof, the Borrower shall furnish, or cause such payor to
furnish, to the Administrative Agent, at such address, an opinion
of counsel acceptable to the Administrative Agent stating that
such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and
"United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender or the Issuing Bank, as the case may be, and
on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party,
and from time to time thereafter as requested in writing by the
Borrower and within 60 days of such written request (but only so
long as such Lender Party remains lawfully able to do so), shall
provide each of the Administrative Agent and the Borrower with
two original Internal Revenue Service Forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the
Internal Revenue Service (including, without limitation, a Form W-
8) certifying that such Lender Party is exempt from or entitled
to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes, if any. If the form
provided by a Lender Party at the time such Lender Party first
becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for
periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender
Party assignee becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest
paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in
the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. Such Lender Party agrees to
promptly notify each of the Administrative Agent and the Borrower
of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and shall provide
each of the Administrative Agent and the Borrower with revised
versions of the appropriate forms described in this Section
2.14(e) that reflect such change in circumstance. If any form or
document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to
compute the tax payable and information required on the date
hereof by Internal Revenue Service Form 1001 or 4224, that the
Lender Party reasonably considers to be confidential, the Lender
Party shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with accurate and complete copies
of the appropriate form described in Section 2.14(e) (updated as
necessary in accordance therewith) certifying that such Lender
Party is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or
the Notes, if any (other than if such failure is due to a change
in law occurring subsequent to the date on which a form
originally was required to be provided), such Lender Party shall
not be entitled to indemnification under Section 2.14(a), (b) or
(c) with respect to Taxes imposed by the United States by reason
of such failure; provided, however, that should a Lender Party
become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall, at such Lender Party's
expense, take such steps as the Lender Party shall reasonably
request to assist the Lender Party to recover such Taxes.
(g) If any Lender Party claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
IRS Form 1001, or any successor or other form prescribed by the
Internal Revenue Service, and such Lender Party sells, assigns,
grants a participation in, or otherwise transfers all or part of
the obligations of the Borrower to such Lender Party, such Lender
Party agrees to notify each of the Administrative Agent and the
Borrower of the percentage amount in which it is no longer the
beneficial owner of obligations of the Borrower to such Lender
Party. To the extent of such percentage amount the
Administrative Agent will treat such Lender Party's IRS Form 1001
as no longer valid and, in the case of a participation, such
Lender Party agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Internal Revenue Code.
(h) If any Lender Party claiming exemption from United
States withholding tax by filing IRS Form 4224, or any successor
or other form prescribed by the Internal Revenue Service, with
the Administrative Agent sells, assigns, grants a participation
in, or otherwise offers all or part of the obligations of the
Borrower to such Lender Party, such Lender Party agrees to
undertake sole responsibility for complying with the withholding
tax requirements imposed by Sections 1441 and 1442 of the
Internal Revenue Code.
(i) If the Internal Revenue Service or any other
governmental authority of the United States or other jurisdiction
asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any
Lender Party (because the appropriate form was not delivered or
was not properly executed, or because such Lender Party failed to
notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender Party shall
indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax or
otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, together with all cost
and expenses (including Attorney Costs). The obligation of the
Lender Parties under this subsection shall survive the payment of
all obligations and the resignation or replacement of the
Administrative Agent.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
Party shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than pursuant to
Section 2.05(c), 2.05(d), 2.11, 2.14, 2.17, 2.19 or 8.04(d)) in
excess of its ratable share of payments on account of the
Advances obtained by all the Lender Parties, such Lender Party
shall forthwith purchase from the other Lender Parties such
participations in the Advances owing to them as shall be
necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from
each Lender Party shall be rescinded and such Lender Party shall
repay to the purchasing Lender Party the purchase price to the
extent of such recovery together with an amount equal to such
Lender Party's ratable share (according to the proportion of
(i) the amount of such Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender
Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so
recovered. The Borrower agrees that any Lender Party so
purchasing a participation from another Lender Party pursuant to
this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Lender Party were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the
Advances and issuances of Letters of Credit shall be available
(and the Borrower agrees that it shall use such proceeds) to
repay existing indebtedness, to provide working capital for the
Borrower and its Affiliates and for the general corporate
purposes of the Borrower and its Affiliates.
SECTION 2.17. Substitution of Lenders. In the event
(a) the obligation of any Lender to make or maintain Eurodollar
Rate Advances has been suspended pursuant to Section 2.08(b),
(b) any Lender has demanded compensation under Section 2.11,
2.12, 2.14 or 2.19, which compensation increases the effective
lending rate of such Lender in excess of the effective lending
rate of the other Lenders, or (c) any Lender shall be a
Defaulting Lender, then and in any such event, the Borrower may
substitute for such Lender (the "Affected Lender") another
financial institution, which financial institution shall be an
Eligible Assignee, for such Lender to assume the Commitment of
such Affected Lender and to purchase the Note, if any, of such
Affected Lender hereunder in accordance with Section 8.07. Such
assumption and purchase shall be effected by execution and
delivery by such Affected Lender and such replacement Lender of
an Assignment and Acceptance, and shall otherwise be made in the
manner described in Section 8.07, provided that the Affected
Lender's obligation to so assign and sell its Commitment and
Note, if any, shall be subject to the condition that all amounts
owing to such Affected Lender (including, without limitation,
principal, accrued and unpaid interest and fees, and all amounts
owing to such Affected Lender under Sections 2.11, 2.12, 2.14,
2.19 and 8.04) shall have been paid in full; provided that such
Affected Lender's rights under Sections 2.11, 2.14, 2.19 and
8.04, and its obligations under Section 7.07, shall survive such
assignment for such Lender Party as to matters occurring prior to
such date.
SECTION 2.18. Evidence of Debt. (a) Each Lender
Party shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Advance owing to such Lender
Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder. The Borrower agrees that upon notice by any Lender
Party to the Borrower (with a copy of such notice to the
Administrative Agent) to the effect that a promissory note or
other evidence of indebtedness is required or appropriate in
order for such Lender Party to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender Party, the Borrower shall promptly execute
and deliver to such Lender Party, with a copy to the
Administrative Agent, a promissory note or other evidence of
indebtedness, in the form of Exhibit A hereto or in form and
substance reasonably satisfactory to the Borrower and such Lender
Party (each a "Note"), payable to the order of such Lender in a
principal amount equal to such Lender's Tranche A Revolving
Credit Commitment or Tranche B Revolving Credit Commitment, as
requested by such Lender.
(b) The Register maintained by the Administrative
Agent pursuant to Section 8.07(d) shall include a control
account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, and (iv) the
amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Administrative
Agent in the Register pursuant to subsection (b) above, and by
each Lender in its account or accounts pursuant to subsection (a)
above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from
the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the
failure of the Administrative Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register
or such account or accounts shall not limit or otherwise affect
the obligations of the Borrower under this Agreement.
SECTION 2.19. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to each Lender Party, so long
as such Lender Party shall be required under regulations of the
FRB to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender Party, from the date of such Advance until
such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting
(i) the Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender Party and
notified to the Borrower through the Administrative Agent.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness.
Section 2.01 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
(a) The Borrower shall have paid all accrued fees of
the Administrative Agent and the Lender Parties and the
accrued fees and expenses of counsel to the Administrative
Agent.
(b) On the Effective Date, the following statements
shall be true and the Administrative Agent shall have
received for the benefit of each Lender Party a certificate
signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties
contained in Section 4.01 are correct on and as of the
Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(c) The Administrative Agent shall have received on or
before the Effective Date the following, each dated such
day, in form and substance satisfactory to the
Administrative Agent and (except for the Notes, if any) in
sufficient copies for each of the Initial Lenders and the
Issuing Bank:
(i) The Affiliate Guaranty.
(ii) The Notes, if any, to the order of the
Initial Lenders that have requested Notes,
respectively.
(iii) Certified copies of the resolutions
of the Board of Directors of each Loan Party approving
each Loan Document to which such Loan Party is a party,
and of the certificate of incorporation and the bylaws
of each Loan Party and of all documents evidencing
other necessary corporate action and governmental
approvals, if any, with respect to the Loan Documents.
(iv) A certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying the
names and true signatures of the officers of such Loan
Party authorized to sign each Loan Document to which
such Loan Party is a party and the other documents to
be delivered by such Loan Party hereunder.
(v) A favorable opinion of Brobeck, Phleger
& Harrison LLP, counsel for the Loan Parties,
substantially in the form of Exhibit D-1 hereto and a
favorable opinion of General Counsel to the Parent,
substantially in the form of Exhibit D-2 hereto and, in
each case, as to such other matters as any Initial
Lenders or the Issuing Bank through the Administrative
Agent may reasonably request.
(d) The Administrative Agent shall have received on or
before the Effective Date a pay-off letter from BABC, as
agent under the BABC Agreement, together with duly executed
UCC-3 termination statements, mortgage releases and such
other instruments, in each case in form and substance
satisfactory to the Administrative Agent, as shall be
necessary to terminate and satisfy all Liens created
pursuant to the BABC Agreement.
SECTION 3.02. Conditions Precedent to Each Borrowing
and Issuance. The obligation of each Lender Party to make an
Advance (other than a Letter of Credit Advance made by the
Issuing Bank or a Lender pursuant to Section 2.03(b)) on the
occasion of each Borrowing (including the initial Borrowing) and
the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit
shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing or
issuance or renewal (a) the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing or
Request for Letter of Credit Issuance or notice of renewal and
the acceptance by the Borrower of the proceeds of such Borrowing
or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by the
Borrower that both on the date of such notice and on the date of
such Borrowing or issuance or renewal such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of such date, before and
after giving effect to such Borrowing or issuance or renewal
and to the application of the proceeds therefrom, as though
made on and as of such date (other than any such
representations or warranties that, by their terms, refer to
a specific date other than the date of the Borrowing or
issuance or renewal, in which case as though made on and as
of such specific date); and
(ii) no event has occurred and is continuing, or would
result from such Borrowing or issuance or renewal or from
the application of the proceeds therefrom, that constitutes
a Default;
and (b) the Administrative Agent shall have received such other
approvals, opinions or documents as to material matters (in the
reasonable determination of the Administrative Agent) as any
Lender Party through the Administrative Agent may reasonably
request.
SECTION 3.03. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender Party shall be deemed to have
consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender
Parties unless an officer of the Administrative Agent responsible
for the transactions contemplated by this Agreement shall have
received notice from such Lender Party prior to the date that the
Borrower, by notice to the Lender Parties, designates as the
proposed Effective Date, specifying its objection thereto. The
Administrative Agent shall promptly notify the Lender Parties of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and
authority (including, without limitation, all governmental
licenses, permits and other approvals and all intellectual
property) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(b) The execution, delivery and performance by the
Borrower of this Agreement and each other Loan Document to
which it is a party, and the consummation of the
transactions contemplated hereby, are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's
charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by the Borrower
of this Agreement or any other Loan Document.
(d) This Agreement has been, and each other Loan
Document to which it is a party when delivered hereunder
will have been, duly executed and delivered by the Borrower.
This Agreement is, and each other Loan Document to which it
is a party when delivered hereunder will be, the legal,
valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with their respective
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally.
(e) The Consolidated balance sheet of the Parent and
its Subsidiaries as at December 31, 1998, and the related
Consolidated statements of income and cash flows of the
Parent and its Subsidiaries for the Fiscal Year then ended,
accompanied by an opinion of Arthur Andersen LLP,
independent public accountants, duly certified by the chief
financial officer of the Parent, together with a certificate
of said officer stating that such information is accurate
and correct in all material respects, copies of which have
been furnished to each Lender Party, fairly present the
Consolidated financial condition of the Parent and its
Subsidiaries as at such date and the Consolidated results of
the operations of the Parent and its Subsidiaries for the
period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. Since
June 30, 1999, there has been no Material Adverse Change.
(f) Except as disclosed on Schedule IV, there is no
pending action, suit, investigation, litigation or
proceeding against or otherwise affecting the Borrower or
any of its Subsidiaries or, to the knowledge of the
Borrower, threatened action, suit, investigation, litigation
or proceeding affecting the Borrower of any of its
Subsidiaries, including without limitation, any
Environmental Action, before any court, governmental agency
or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or
any other Loan Document or the consummation of the
transactions contemplated hereby.
(g) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
Margin Stock, and no proceeds of any Advance will be used to
purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin
Stock.
(h) No proceeds of any Advance will be used to acquire
any equity security of a class which is registered pursuant
to Section 12 of the Securities Exchange Act of 1934, other
than securities issued by the Parent.
(i) Neither the Borrower nor any of its Subsidiaries
is an "investment company," an "affiliated person" of an
"investment company," or a "promoter" or "principal
underwriter" for an "investment company," as such terms are
defined the Investment Company Act of 1940, as amended.
Neither the making of any Advances nor the application of
the proceeds therefrom or repayment thereof by the Borrower,
nor the consummation of the transactions contemplated
hereby, will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange
Commission thereunder.
(j) The Borrower has (i) initiated a review and
assessment of all areas within its and each of its
Subsidiaries' business and operations (including those
affected by suppliers, vendors and customers) that could
reasonably be expected to be affected in any material
respect by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower or any of its
Subsidiaries (or suppliers, vendors and customers) may be
unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and time
line for addressing the Year 2000 Problem on a timely basis,
and (iii) to date, implemented that plan substantially in
accordance with that timetable. Based on the foregoing, the
Borrower reasonably believes that all computer applications
(including those of its suppliers, vendors and customers)
that are material to its or any of its Subsidiaries'
business and operations are reasonably expected on a timely
basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000
(that is, be "Year 2000 Compliant"), except to the extent
that any failures to do so singly or in the aggregate could
not reasonably be expected to have a Material Adverse
Effect.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment
hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property
except to the extent contested in good faith.
(b) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates.
(c) Corporate Existence and Good Standing. Maintain
its corporate existence and its qualification and good
standing in all jurisdictions in which the failure to
maintain such existence and qualification or good standing
could reasonably be expected to have a Material Adverse
Effect.
(d) Year 2000. Promptly notify the Administrative
Agent in the event the Borrower discovers or determines that
any computer application (including those of its suppliers,
vendors and customers) that is material to its or any of its
Subsidiaries' business and operations will not be Year 2000
Compliant, except to the extent that any such failures
singly or in the aggregate could not reasonably be expected
to have a Material Adverse Effect.
(e) Records and Inspections. Maintain books, records
and accounts as may be required by GAAP. At the request of
any Lender and upon reasonable prior notice, the Parent and
its officers, employees and public accountants, as
applicable, will meet with representatives of such Lender to
discuss the current and expected financial position,
business and prospects of the Parent and its Subsidiaries,
taken as a whole, and the Borrower's compliance with its
obligations under the Loan Documents. Upon reasonable prior
notice, the Borrower shall permit the Administrative Agent,
at its expense, to examine and make abstracts from the books
and records of the Borrower.
(f) Taxes and Other Obligations. (i) File when due
all tax returns and other reports which it is required to
file; (ii) pay, or provide for the payment, when due, of all
taxes, fees, assessments and other governmental charges
against it or upon its property, income and franchises, make
all required withholding and other tax deposits, and
establish adequate reserves for the payment of all such
items, and provide to the Administrative Agent and the
Lender Parties, upon request, satisfactory evidence of its
timely compliance with the foregoing; and (iii) pay when due
all Debt owed by it and all claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like
Persons, and all other indebtedness owed by it and perform
and discharge in a timely manner all other obligations
undertaken by it; provided, however, so long as a Loan Party
has notified the Administrative Agent in writing, it need
not pay any Debt, tax, fee, assessment, or governmental
charge, that (x) it is contesting in good faith by
appropriate proceedings diligently pursued, and (y) for
which it has established proper reserves as provided by
GAAP; provided, further, that no Lien (other than a
Permitted Lien) results from such non-payment.
(g) Reporting Requirements. Furnish to the
Administrative Agent (with copies for each Lender Party):
(i) as soon as available and in any event
within 45 days after the end of each of the first three
quarters of each Fiscal Year, a Consolidated balance
sheet of the Parent and its Subsidiaries as of the end
of such quarter and Consolidated statements of income
and cash flows of the Parent and its Subsidiaries for
the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by a
Responsible Officer of the Parent as having been
prepared in accordance with generally accepted
accounting principles and a certificate of the chief
financial officer of the Parent (in the form of Exhibit
E hereto) as to compliance with the terms of this
Agreement, together with confirmation of the Pricing
Index, and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with
Section 5.03, provided that, in the event of any change
in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if
necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(ii) as soon as available and in any event
within 90 days after the end of each Fiscal Year, a
copy of the audited annual report for such year for the
Parent and its Consolidated Subsidiaries, and a
Consolidated balance sheet of the Parent and its
Subsidiaries as of the end of such Fiscal Year and
Consolidated statements of income and cash flows of the
Parent and its Subsidiaries for such Fiscal Year, and,
in the case of the audited annual report, accompanied
by an unqualified opinion by Arthur Andersen LLP or
other independent public accountants acceptable to the
Required Lenders, together with a certificate of a
Responsible Officer of the Parent (in the form of
Exhibit E hereto) as to compliance with the terms of
this Agreement, together with confirmation of the
Pricing Index, and setting forth in reasonable detail
the calculations necessary to demonstrate compliance
with Section 5.03 provided that, in the event of any
change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide,
if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(iii) not later than the end of the first
month of each Fiscal Year, annual forecasts (to include
forecasted consolidated balance sheets, statements of
income and expenses and statements of cash flow) for
the Parent, the Borrower and their Subsidiaries as at
the end of and for each quarter of such Fiscal Year;
(iv) as soon as possible and in any event
within five days after a Responsible Officer obtains
knowledge of the occurrence of each Default continuing
on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details
of such Default and the action which the Borrower has
taken and proposes to take with respect thereto;
(v) promptly after the filing thereof,
copies of all material reports and registration
statements that the Parent or any Subsidiary files with
the Securities and Exchange Commission;
(vi) promptly after the sending or filing
thereof, copies of all reports which the Parent sends
to any of its securityholders, and copies of all
reports and registration statements which the Parent or
any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(vii) promptly after the filing thereof,
a copy of any notice of reportable event, within the
meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect
to such event has been waived by the PBGC;
(viii) promptly after becoming aware of
any Material Adverse Change, a description thereof;
(ix) promptly after receiving notification
thereof from the Index Reference, copies of all
notices, reports or other correspondence regarding any
change to the Pricing Index, including any change in
such Pricing Index or the "outlook" in respect of such
Pricing Index; and
(x) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Lender Party
through the Administrative Agent may from time to time
reasonably request.
(h) Rating and Surveillance Process. Take, or cause
to be taken, all actions (including paying all fees,
providing all information, and taking all such other
actions) as may be necessary or advisable to ensure the
continuance of the rating and surveillance process conducted
by the Index Reference with respect to the Parent.
(i) Further Assurances. Execute and deliver, or cause
to be executed and delivered, to the Administrative Agent
and/or the Lender Parties such documents and agreements, and
shall take or cause to be taken such actions, as the
Administrative Agent or any Lender Party may, from time to
time, reasonably request to carry out the terms and
conditions of this Agreement and the other Loan Documents.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment
hereunder:
(a) Mergers, Consolidations or Sales. None of the
Loan Parties shall consummate any transaction of merger,
reorganization, or consolidation, or transfer, sell, assign,
lease, or otherwise dispose of all or any part of its
property, or wind up, liquidate or dissolve, or agree to do
any of the foregoing, except for (i) any merger of any Loan
Party with and into the Borrower; (ii) sales or other
dispositions of personal property in the ordinary course of
business; (iii) sales of Real Estate for fair market value
in exchange for similar property complying with Section 1031
of the Internal Revenue Code; (iv) sales of accounts
receivable and any related property by the Borrower in a
receivables securitization arrangement to a financial
institution or a special purpose vehicle of the Borrower,
provided, however, that the aggregate net unrecovered
investment in such accounts receivable and proceeds thereof
held by the purchasers thereof under such accounts
receivables securitization arrangement shall not exceed at
any time $75,000,000; and (v) sales or other transfers of
assets by the Borrower in any Fiscal Year with an aggregate
book value not in excess of five percent (5%) of the
Consolidated Total Assets of Parent as of the end of the
previous Fiscal Year.
(b) Acquisitions. No Loan Party shall acquire any
business (whether in the form of an acquisition of stock,
assets, debt, or other indebtedness or obligation or a loan,
advance, capital contribution, or subscription), or permit
any of its Subsidiaries to do any of the foregoing, if for
any such transaction the sum of: (i) cash paid by such Loan
Party or such Subsidiary in connection with such
transaction, plus (ii) the amount of obligations issued or
assumed by such Loan Party or such Subsidiary in connection
with such transaction, plus (iii) the aggregate amount of
cash paid by all Loan Parties and their Subsidiaries in
connection with all other such acquisitions that are
consummated in the same Fiscal Year as such issuance or
assumption, as the case may be, plus (iv) the aggregate
amount of obligations issued or assumed by all Loan Parties
and their Subsidiaries in connection with all other such
acquisitions that are consummated in such Fiscal Year, is
greater than $50,000,000; provided that any business so
acquired shall be engaged in the transportation business and
related businesses.
(c) Prepayment. None of the Loan Parties shall
voluntarily prepay, purchase or redeem any Subordinated
Debt.
(d) Transactions with Affiliates. Except as set forth
below, none of the Loan Parties shall, sell, transfer,
distribute, or pay any money or property, including, but not
limited to, any fees or expenses of any nature (including,
but not limited to, any fees or expenses for management
services), to any Affiliate (other than a Loan Party), or
lend or advance money or property to any Affiliate (other
than a Loan Party), or invest in (by capital contribution or
otherwise) or purchase or repurchase any stock or
indebtedness, or any property, of any Affiliate (other than
a Loan Party), or become liable on any Guaranty of the
indebtedness, dividends, or other obligations of any
Affiliate (other than a Loan Party). Notwithstanding the
foregoing, provided that no Event of Default has occurred
and is continuing or would result from such action, (i) each
Loan Party may engage in transactions with Affiliates in the
ordinary course of business, in amounts and upon terms fully
disclosed to the Administrative Agent and the Lender
Parties, and no less favorable to such Loan Party than would
be obtained in a comparable arm's-length transaction with a
third party who is not an Affiliate, (ii) each Loan Party
may engage in transactions with Affiliates in the ordinary
course of business, consistent with the Borrower's current
cash management practices and (iii) the Borrower may provide
fundings to Leland James Service Corporation and Redwood
Systems Logistics to enable them to make payments to their
employees and vendors in the ordinary course of business in
connection with services provided to the Loan Parties and
their Subsidiaries.
(e) Business Conducted. None of the Loan Parties
shall engage directly or indirectly, in any line of business
other than the transportation business and related
businesses.
(f) Liens. None of the Loan Parties shall create,
incur, assume, or permit to exist any Lien on any property
now owned or hereafter acquired by it, except Permitted
Liens.
(g) New Subsidiaries. Neither the Borrower nor any of
its Subsidiaries shall, directly or indirectly, organize,
create, acquire or permit to exist any Subsidiary other than
(a) those listed on Schedule VI hereto and (b) provided that
no Event of Default has occurred and is continuing or would
result from such action, new Subsidiaries (including
Subsidiaries established as vehicles for joint ventures) to
engage in the transportation business and related
businesses; and provided, further, that in the event the
Borrower or any of its Subsidiaries forms any domestic
Subsidiary that is not established as a vehicle for a joint
venture, the Borrower shall cause such new domestic
Subsidiary, when it satisfies the financial tests contained
in the definition of "Guarantor," to execute a Guaranty
(substantially similar to the Affiliate Guaranty) containing
representations, warranties and covenants acceptable to the
Administrative Agent, in favor of the Administrative Agent
for the benefit of the Lender Parties, in a manner and in
form and substance satisfactory to the Administrative Agent.
(h) Fiscal Year. The Borrower shall not change its
Fiscal Year.
(i) Restricted Investments. No Loan Party shall
directly or indirectly declare or make, or incur any
liability to make, any Investment in any Person, except (i)
Investments in other Loan Parties; (ii) Investments that are
otherwise permitted under Sections 5.02(b), (d) and (g);
(iii) loans and advances made in the ordinary course of
business to a Subsidiary of such Loan Party that is not
itself a Loan Party; (iv) loans and advances made to
customers, vendors or employees of such Loan Party in the
ordinary course of business and (v) Investments in one or
more Designated Entities; provided that (x) no Event of
Default has occurred and is continuing or would result from
such Investment in a Designated Entity and (y) the aggregate
net amount of Investments by all Loan Parties in Designated
Entities does not, and would not as a result of such
Investment, exceed 10% of the Consolidated Tangible Net
Worth of the Parent at the date of determination.
SECTION 5.03. Financial Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will maintain or cause to be maintained:
(a) Leverage Ratio. At all times a ratio of not more
than 2.50 to 1.00, determined as of the end of each fiscal
quarter, of Consolidated Funded Indebtedness as of the end
of such fiscal quarter to Consolidated EBITDAR for the four
fiscal quarters ending on such date.
(b) Tangible Net Worth. At all times a Consolidated
Tangible Net Worth of the Parent, determined as of the end
of each fiscal quarter, of not less than the sum of (i)
$205,000,000, plus (ii) 50% of Consolidated Net Income
during the period commencing June 30, 1999 and ending at the
end of such fiscal quarter (without taking into account any
losses) plus (iii) 100% of the Net Cash Proceeds of all
Equity Interests issued by the Parent during the period
commencing June 30, 1999 and ending at the end of such
fiscal quarter minus (iv) an amount, calculated on an after-
tax basis, in respect of charges not in excess of
$15,000,000 related to the Tax Sharing Agreement.
(c) Fixed Charge Coverage Ratio. At all times a
ratio, determined as of the end of each fiscal quarter for
the immediately preceding four fiscal quarters, of (a)
Consolidated EBITDAR for such fiscal quarters to (b)
Consolidated Interest and Rental Expense for such fiscal
quarters of not less than 2.00 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable, or the
Borrower shall fail to pay any interest on any Advance, or
any other amount due hereunder, within three Business Days
after the same becomes due and payable; or
(b) Any representation or warranty made or deemed made
by any Loan Party herein or by any Loan Party (or any of its
officers) in connection with the Loan Documents shall prove
to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in
Section 5.01(c), (d) or (g), 5.02 or 5.03, or (ii) any Loan
Party shall fail to perform or observe any other term,
covenant or agreement contained in the Loan Documents on its
part to be performed or observed if such failure shall
remain unremedied for 10 days after written notice thereof
shall have been given to such Loan Party by the
Administrative Agent or any Lender Party; or
(d) Any Loan Party shall fail to pay any principal of
or premium or interest on any Debt which is outstanding in a
principal amount of at least $10,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of such Loan
Party, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated
maturity thereof; or
(e) Any Loan Party shall generally not pay its debts
as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Loan Party
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall
occur; or any Loan Party shall take any corporate action to
authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $10,000,000, over the amount provided by insurance
in respect of such judgment or order, shall be rendered
against any Loan Party and either (i) enforcement
proceedings shall have been commenced by any creditor upon
such judgment or order and such proceedings shall not have
been stayed within 30 days of such commencement or
(ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect; or
(g) (i) Any ERISA Event shall have occurred with
respect to a Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title
IV of ERISA to the Plan or the PBGC in an aggregate amount
in excess of $25,000,000; or (ii) any Loan Party or any
ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $25,000,000; or
(h) Any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer Plan
in an amount that, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Loan Party
and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $25,000,000 or
requires payments exceeding $25,000,000 per annum; or
(i) Any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as
a result of such reorganization or termination the aggregate
annual contributions of the Loan Party and the ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$25,000,000; or
(j) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 shall for any reason cease
to be valid and binding on or enforceable against any Loan
Party, or any Loan Party shall so state in writing; or
(k) a Change of Control shall occur; or
(l) there occurs a Material Adverse Effect;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the obligation of each Lender
Party to make Advances (other than Letters of Credit Advances by
the Issuing Bank or a Lender pursuant to Section 2.03(b)) and of
the Issuing Bank to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Advances, the Notes, if any,
all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the
Advances, the Notes, if any, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Loan Party and by
notice to each party required under the terms of any agreement in
support of which a Letter of Credit is issued, request that all
obligations under such agreement be declared to be due and
payable; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Loan
Party under the Federal Bankruptcy Code, (A) the obligation of
each Lender Party to make Advances (other than Letters of Credit
Advances by the Issuing Bank or a Lender pursuant to Section
2.03(b)) and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (B) the Advances, the Notes, if
any, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby
expressly waived by each Loan Party.
SECTION 6.02. Actions in Respect of the Letters of
Credit upon Default. If any Event of Default shall have occurred
and be continuing, the Administrative Agent may, or shall at the
request of the Required Tranche B Lenders, irrespective of
whether they are taking any of the actions described in
Section 6.01 or otherwise, make demand upon the Borrower to, and
forthwith upon such demand the Borrower will, pay to the
Administrative Agent on behalf of the Issuing Bank and the
Tranche B Lenders in same day funds at the Administrative Agent's
office designated in such demand, for deposit in the L/C Cash
Collateral Account, an amount equal to the aggregate Available
Amount of all Letters of Credit then outstanding. If at any time
the Administrative Agent determines that any funds held in the
L/C Cash Collateral Account are subject to any right or claim of
any Person other than the Administrative Agent, the Issuing Bank
and the Tranche B Lenders or that the total amount of such funds
is less than the aggregate Available Amount of all Letters of
Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the L/C Cash
Collateral Account, an amount equal to the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if
any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such
right and claim.
ARTICLE VII
The Administrative Agent
SECTION 7.01 Appointment and Authorization. (a) Each
Lender Party hereby irrevocably (subject to Section 7.09)
appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document,
together with this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto; provided, however, that the Administrative Agent shall
not be required to take any action that exposes it to personal
liability or that is contrary to this Agreement or applicable
law. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender Party, and no implied
covenants, functions. responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
Without limiting the generality of the foregoing sentence, the
use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such, term is used
merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Bank shall act on behalf of the Tranche B
Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith until such time and except for
so long as the Administrative Agent may agree at the request of
the Required Tranche B Lenders to act for the Issuing Bank with
respect thereto; provided, however, that the Issuing Bank shall
have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article VII with respect to any acts
taken or omissions suffered by the Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued by
it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term
"Administrative Agent," as used in this Article VII, included the
Issuing Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the
Issuing Bank.
SECTION 7.02 Delegation of Duties. The
Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.
SECTION 7.03 Liability of the Administrative Agent.
None of the Agent-Related Persons shall (i) be liable for any
action taken or to be taken by any of them under or in connection
with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lender Parties for any recital, statement,
representation or warranty made by the Borrower or any Subsidiary
or Affiliate of the Borrower, or any officer thereof, contained
in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for
any failure of the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender
Party to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records or the Borrower or any of the
Borrower's Subsidiaries or Affiliates.
SECTION 7.04 Reliance by the Administrative Agent and
the Issuing Bank. (a) Each of the Administrative Agent and the
Issuing Bank shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, instrument, telegram,
facsimile, telex, telecopier or telephone message, statement or
other document or writing or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative
Agent or the Issuing Bank, as the case may be. Each of the
Administrative Agent and the Issuing Bank shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or the
Required Tranche B Lenders, as the case may be, as it deems
appropriate and, if it so requests, it shall first be indemnified
to its satisfaction by the Lender Parties against any and all
liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Each of the
Administrative Agent and the Issuing Bank shall in all cases be
fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders or the Required
Tranche B Lenders, as the case may be, and such request and any
action taken or failure to act pursuant thereto shall be binding
upon all of the Lender Parties.
(b) Without limiting the generality of the foregoing, each
of the Administrative Agent and the Issuing Bank (i) may treat
the payee of any Note, if any, as the holder thereof until the
Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender Party that is the payee of
such Note, if any, as assignor, and an Eligible Assignee, as
assignee; (ii) makes no warranty or representation to any Lender
Party and shall not be responsible to any Lender Party for any
statements, warranties or representations (whether written or
oral) made in or in connection with any Loan Document; (iii)
shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; and (iv) shall not be responsible to any Lender Party
for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto.
SECTION 7.05 Notice of Default. The Administrative
Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to
the Administrative Agent for the account of the Lenders, unless
the Administrative Agent shall have received written notice from
a Lender Party or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice
of default." The Administrative Agent will notify the Lenders of
its receipt of any such notice. The Administrative Agent shall
take such action with respect to such Default as may be requested
by the Required Lenders in accordance with Article VI; provided,
however, that unless and until the Administrative Agent has
received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lender Parties.
SECTION 7.06 Lender Party Credit Decision. Each
Lender Party acknowledges that none of the Agent-Related Persons
has made any representation or warranty to it, and that no act by
the Administrative Agent hereinafter taken, including any review
of the affairs of the Borrower and its Subsidiaries, shall be
deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender Party. Each Lender Party
represents to the Administrative Agent that it has, independently
and without reliance upon any Agent-Related Person and based on
the financial statements referred to in Section 4.01 and such
other documents, and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition
and creditworthiness of the Borrower and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower hereunder. Each
Lender Party also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports
and other documents expressly herein required to be furnished to
the Lender Parties by the Administrative Agent, the
Administrative Agent shall have no duty or responsibility to
provide any Lender Party with any credit or other information
concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower
which may come into the possession of any of the Agent-Related
Persons.
SECTION 7.07 Indemnification of the Administrative
Agent. (a) Whether or not the transactions contemplated hereby
are consummated, each Lender Party shall indemnify upon demand
the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the
Borrower to do so), pro rata, from and against any and all
Indemnified Liabilities; provided, however, that no Lender Party
shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting solely from
such Person's gross negligence or willful misconduct as found in
a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender
Party shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent
in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated
by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the
Borrower.
(b) Each Tranche B Lender severally agrees to indemnify the
Issuing Bank (to the extent not reimbursed by the Borrower),
ratably according to the respective principal amounts of the
Notes in respect of the Tranche B Revolving Credit Facility, if
any, then held by each of them (or if no such Notes are at the
time outstanding or if any such Notes are held by Persons that
are not Tranche B Lenders, ratably according to the respective
amounts of their Tranche B Revolving Credit Commitments), from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in
any way relating to or arising out of this Agreement or any
action taken or omitted by the Issuing Bank under this Agreement
(collectively, the "Issuing Bank Indemnified Costs"), provided
that no Tranche B Lender shall be liable for any portion of the
Issuing Bank Indemnified Costs resulting from the Issuing Bank's
gross negligence or willful misconduct as found in a final, non-
appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Tranche B Lender agrees
to reimburse the Issuing Bank promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Issuing Bank in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent
that the Issuing Bank is not reimbursed for such expenses by the
Borrower.
(c) In the case of any investigation, litigation or
proceeding giving rise to the Administrative Agent's Indemnified
Liabilities or the Issuing Bank's Indemnified Costs, this
Section 7.07 applies whether any such investigation, litigation
or proceeding is brought by the Administrative Agent, any Lender
Party or a third party. Without prejudice to the survival of any
other agreement of any Lender Party hereunder, the agreement,
obligations and undertaking of each Lender Party contained in
this Section 7.07 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the
other Loan Documents and the resignation or replacement of the
Administrative Agent.
SECTION 7.08 Administrative Agent in Individual
Capacity. ABN AMRO and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other
business with the Borrower and its Affiliates as though ABN AMRO
were not the Administrative Agent or the Issuing Bank hereunder
and without notice to or consent of the other Lenders. The
Lender Parties acknowledge that, pursuant to such activities, ABN
AMRO or its Affiliates may receive information regarding the
Borrower and its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrower
or such Affiliates) and acknowledge that the Administrative Agent
shall not be under any obligation to provide such information to
them. With respect to its Commitment, the Advances made by it
and the Note, if any, issued to it, ABN AMRO shall have the same
rights and powers under this Agreement as any other Lender Party
and may exercise the same as though it were not the
Administrative Agent or the Issuing Bank.
SECTION 7.09 Successor Administrative Agent. The
Administrative Agent may, and at the request of the Required
Lenders shall, resign as the Administrative Agent upon 30 days'
notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the
Lenders a successor Administrative Agent for the Lender Parties
which successor Administrative Agent shall be approved by the
Borrower. If no successor Administrative Agent is appointed
prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrower, a successor
Administrative Agent from among the Lender Parties. Upon the
acceptance of its appointment as successor Administrative Agent
hereunder, such successor Administrative Agent shall succeed to
all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring
Administrative Agent's appointment, powers and duties as the
Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article VII and Section 8.04 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this
Agreement. If no successor Administrative Agent has accepted
appointment as the successor Administrative Agent by the date
which is 30 days following the retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective and the
Lender Parties shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as
provided for above. Notwithstanding the foregoing, however, ABN
AMRO may not be removed as the Administrative Agent at the
request of the Required Lenders unless ABN AMRO shall also
simultaneously be replaced as "Issuing Bank" hereunder pursuant
to documentation in form and substance reasonably satisfactory to
ABN AMRO.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Notes, if any, nor
consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed
by the Required Lenders and the Borrower with receipt
acknowledged by the Administrative Agent, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall:
(a) unless in writing and signed by all the Lender Parties
and the Borrower with receipt acknowledged by the
Administrative Agent, do any of the following: (i) waive
any of the conditions specified in Section 3.01, (ii) amend
this Section 8.01(a), (iii) release or limit the liability
of any Guarantor under the Affiliate Guaranty other than in
accordance with the terms of the Affiliate Guaranty or (iv)
change the voting requirements for the Lenders or any of
them to take any action under this Section 8.01(a);
(b) unless in writing and signed by all the Tranche A
Lenders and the Borrower with receipt acknowledged by the
Administrative Agent, do any of the following: (i) increase
the Tranche A Revolving Credit Commitments of the Tranche A
Lenders or subject the Tranche A Lenders to any additional
financial obligations, (ii) change the aggregate principal
amount of the Tranche A Revolving Credit Facility, or reduce
the principal of, or interest on, such Facility, or any fees
or other amounts payable hereunder in respect thereof,
(iii) postpone any date fixed for any payment of principal
of, or interest on, the Tranche A Revolving Credit Facility,
or any fees or other amounts payable hereunder in respect
thereof, (iv) change the percentage of the Tranche A
Revolving Credit Commitments, (v) amend this Section 8.01(b)
or (vi) change the voting requirements for the Tranche A
Lenders or any of them to take any action under this Section
8.01(b); or
(c) unless in writing and signed by all the Tranche B
Lenders and the Borrower with receipt acknowledged by the
Administrative Agent, do any of the following: (i) increase
the Tranche B Revolving Credit Commitments of the Tranche B
Lenders or subject the Tranche B Lenders to any additional
financial obligations, (ii) change the aggregate principal
amount of the Tranche B Revolving Credit Facility, or reduce
the principal of, or interest on, such Facility, or any fees
or other amounts payable hereunder in respect thereof,
(iii) postpone any date fixed for any payment of principal
of, or interest on, the Tranche B Revolving Credit Facility,
or any fees or other amounts payable hereunder in respect
thereof, (iv) change the percentage of the Tranche B
Revolving Credit Commitments, (v) amend this
Section 8.01(c), (vi) change the voting requirements for the
Tranche B Lenders or any of them to take any action under
this Section 8.01(c) or (vii) change the aggregate Available
Amount of outstanding Letters of Credit;
provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Bank, as the case may
be, in addition to the Lender Parties required above to take such
action, and the Borrower, affect the rights or obligations of the
Issuing Bank under this Agreement; and provided further that no
amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required
above to take such action, and the Borrower, affect the rights or
duties of the Administrative Agent under this Agreement or any
Note, if any.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier communication) and mailed, telecopied, or
delivered, if to the Borrower, at its address at 175 Linfield
Drive, Menlo Park, California 94025-3799, Attention: Treasurer;
if to any Initial Lender or the Issuing Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender Party, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it
became a Lender Party; if to the Administrative Agent, at its
address at 101 California Street, Suite 4550, San Francisco,
California 94111, or, as to the Borrower or the Administrative
Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other
party, at such other address as shall be designated by such party
in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall, when delivered by
overnight courier or telecopied, be effective when delivered to
the overnight courier or telecopied, respectively, except that
notices and communications to the Administrative Agent pursuant
to Article II, III or VII shall not be effective until received
by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision
of this Agreement or the Notes, if any, or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Lender Party or the Administrative Agent to exercise,
and no delay in exercising, any right hereunder or under any
Note, if any, shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
shall, whether or not the transactions contemplated hereby are
consummated, pay or reimburse all reasonable fees and expenses of
counsel for the Administrative Agent (including in its capacity
as the Administrative Agent and the Issuing Bank) promptly after
demand in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement,
waiver or modification to (in each case, whether or not
consummated), this Agreement, any Notes, if any, any other Loan
Document and any other documents prepared in connection herewith
or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney
Costs incurred by ABN AMRO (including in its capacity as the
Administrative Agent and the Issuing Bank) with respect thereto;
and
(b) The Borrower shall pay or reimburse the Administrative
Agent and each Lender Party within five Business Days after
demand for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an
Event of Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any insolvency proceeding, bankruptcy
proceeding, liquidation, winding up, reorganization,
receivership, arrangement, adjustment, protection, relief of
debtors or appellate proceeding (collectively, an "Insolvency
Proceeding")).
(c) Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify, defend and hold the
Agent-Related Persons, each Lender Party and each of its
Affiliates and each of their respective officers, directors,
employees, counsel, agents, advisors and attorneys-in-fact (each,
an "Indemnified Party") harmless from and against any and all
liabilities, obligations, losses, claims, damages, penalties,
actions, judgments, suits, costs, charges, expenses and
disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following
repayment of the Advances, the termination of the Letters of
Credit and the termination, resignation or replacement of the
Administrative Agent or replacement of any Lender Party) be
imposed on, incurred by or asserted against any such Person as a
result of a claim by a third party in any way relating to or
arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in
connection with) (i) this Agreement, any Loan Document or any
document contemplated by or referred to herein, or the
transactions contemplated hereby or the actual or proposed use of
proceeds of the Advances or Letters of Credit, or (ii) the actual
or alleged presence of Hazardous Materials on any property of the
Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries,
or in the case of each of clauses (i) and (ii) above, any action
taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Advances or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Party is a
party thereto and whether or not any such investigation,
litigation or proceeding is brought by any creditor of any Loan
Party, an Indemnified Party or any other Person, (all the
foregoing in clauses (i) and (ii) above, collectively, being the
"Indemnified Liabilities"); provided, that the Borrower shall
have no obligation hereunder to any Indemnified Party with
respect to Indemnified Liabilities resulting solely from the
gross negligence or willful misconduct of such Indemnified Party
as found in a final, non-appealable judgment by a court of
competent jurisdiction. The Borrower also agrees not to assert
any claim against the Administrative Agent, any Lender Party, any
of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of
liability, for special indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, if
any, this Agreement, any of the transactions contemplated herein
or the actual or proposed use of the proceeds of the Advances.
(d) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the
account of a Lender Party other than on the last day of the
Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12,
acceleration of the Advances or maturity of the Notes, if any,
pursuant to Section 6.01 or for any other reason, or by an
Eligible Assignee to a Lender Party other than on the last day of
the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 8.07 as
a result of a demand by the Borrower pursuant to Section 8.07(a),
the Borrower shall, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.14,
2.17, 2.19 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and
under the Notes, if any.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Advances and the Notes, if any, due and payable
pursuant to the provisions of Section 6.01, each Lender Party and
each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note, if any,
held by such Lender Party, whether or not such Lender Party shall
have made any demand under this Agreement or such Note, if any,
and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and
application. The rights of each Lender Party and its Affiliates
under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that
such Lender Party and its Affiliates may have.
SECTION 8.06. Binding Effect; Entire Agreement. This
Agreement shall become effective (other than Section 2.01, which
shall only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial
Lender and the Issuing Bank that such Initial Lender or the
Issuing Bank, as the case may be, has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lender Parties.
This Agreement, together with the other Loan Documents,
constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all previous
proposals, negotiations, representations, commitments and other
communications between or among the parties, both oral and
written, with respect thereto.
SECTION 8.07. Assignments and Participations. (a)
Each Lender may and, if demanded by the Borrower pursuant to
Section 2.17, will assign to one or more Persons all or a portion
of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes, if any, held by it);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and
obligations under this Agreement, and each such assignment shall
be of the same ratable amount of the Tranche A Revolving Credit
Advances, Tranche B Revolving Credit Advances, Tranche A
Revolving Credit Commitment and Tranche B Revolving Credit
Commitment of the assigning Lender to the same assignee,
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender
being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, and (iv) the
parties to each such assignment shall execute and deliver to the
Borrower for its approval (unless an Event of Default shall have
occurred and be continuing), such approval not to be unreasonably
withheld or delayed, and to the Administrative Agent for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note, if any, subject to such
assignment and a processing and recordation fee of $3,000.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender Party
hereunder and (y) the Lender Party assignor thereunder shall, to
the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and 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
Party's rights and obligations under this Agreement, such Lender
Party shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Lender Party assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender Party makes
no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent,
such assigning Lender Party or any other Lender Party 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 this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or the
Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lender Parties and
the Commitment of, and principal amount of the Advances owing to,
each Lender Party from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person
whose name is recorded in the Register as a Lender Party
hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Lender Party
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 Party and an assignee
representing that it is an Eligible Assignee, (and subject to the
Borrower's approval, such approval not to be unreasonably
withheld) together with any Note or Notes, if any, subject to
such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in
substantially the form of Exhibit F hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the Borrower. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note, if
any, a new Note, if any, to the order of such Eligible 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 Note or Notes, if any, shall be in an
aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, if any, shall be dated
the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(f) Each Lender Party may sell participations to one or
more banks or other entities that qualify as an Eligible Assignee
(other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note, if any, or
Notes, if any, held by it); provided, however, that (i) such
Lender Party's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower hereunder)
shall remain unchanged, (ii) such Lender Party shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender Party shall
remain the holder of any such Note, if any, for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and
the other Lender Parties shall continue to deal solely and
directly with such Lender Party in connection with such Lender
Party's rights and obligations under this Agreement, (v) no
participant under any such participation shall have any right to
approve any amendment or waiver of any provision of this
Agreement or any Note, if any, or any consent to any departure by
the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on,
the Advances and the Notes, if any, or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of
principal of, or interest on, the Advances and the Notes, if any,
or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation and (vi) such Lender
Party shall give prompt notice to the Borrower of such
participations.
(g) Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender Party by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any Confidential
Information relating to the Borrower received by it from such
Lender Party.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note, if any, held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the
Administrative Agent nor any Lender Party shall disclose any
Confidential Information to any other Person without the consent
of the Borrower, other than (a) to the Administrative Agent's or
such Lender Party's Affiliates and their officers, directors,
employees, agents, auditors, attorneys and advisors and, as
contemplated by Section 8.07(f), to actual or prospective
assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking. In
the event any Lender Party is contemplating assigning or selling
a participation in all or a portion of its rights and obligations
under this Agreement to one or more Persons, prior to disclosing
any Confidential Information to such Person, such Person shall be
required to execute a confidentiality agreement in form and
substance satisfactory to the Borrower and such Person.
SECTION 8.09. No Liability of the Issuing Bank. The
Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to
its use of such Letter of Credit. Without limiting the
generality of Section 2.06(c)(ii) hereof, neither the Issuing
Bank nor any of its officers or directors shall be liable or
responsible for any act or circumstance set forth in clauses (A)
through (G) of such Section; except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower
proves were caused by (i) the Issuing Bank's willful misconduct
or gross negligence in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of
a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary.
SECTION 8.10. Governing Law. This Agreement and the
Notes, if any, shall be governed by, and construed in accordance
with, the laws of the State of California.
SECTION 8.11. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdictions of
any California State court or federal court of the United States
of America sitting in San Francisco, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, if any, or for
recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be
heard and determined in any such California State court or, to
the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
California State or federal court sitting in San Francisco. Each
of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
SECTION 8.13. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
NOTES, IF ANY, OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY
LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE BORROWER
CONSOLIDATED FREIGHTWAYS
CORPORATION
OF DELAWARE
By
Name:
Title:
THE ADMINISTRATIVE AGENT
ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
THE LENDER PARTIES
ABN AMRO BANK N.V.,
as the Issuing Bank, a Tranche A
Lender
and a Tranche B Lender
By
Name:
Title:
By
Name:
Title:
BANK ONE, NA (Main Office Chicago),
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
FIRST UNION NATIONAL BANK,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
BANKBOSTON, N.A.,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche A Lender and a Tranche
B Lender
By
Name:
Title: