CREDIT AGREEMENT
DATED AS OF JANUARY 31, 1997
AMONG
LOUISIANA-PACIFIC CORPORATION,
AS THE REVOLVING BORROWER,
LOUISIANA-PACIFIC CANADA LTD.,
AS THE TERM BORROWER,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANCAMERICA SECURITIES, INC.
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS.............................. 1
1.01 Certain Defined Terms.................................... 1
1.02 Accounting Principles.................................... 16
ARTICLE II
THE CREDITS.............................. 16
2.01 Amounts and Terms of Commitments......................... 16
(a) The Term Credit..................................... 16
(b) The Revolving Credit................................ 16
2.02 Loan Accounts; Notes; Designation of Revolving
Borrower...................................................... 17
2.03 Procedure for Committed Borrowing........................ 18
2.04 Conversion and Continuation Elections for
Committed Borrowings.......................................... 19
2.05 Bid Borrowings........................................... 21
2.06 Procedure for Bid Borrowings............................. 21
2.07 Procedure for Swingline Loans............................ 26
2.08 Voluntary Termination or Reduction of
Commitments................................................... 28
2.09 Prepayments.............................................. 29
2.10 Repayment................................................ 30
(a) The Revolving Credit................................ 30
(b) Bid Loans........................................... 30
(c) Swingline Loans..................................... 30
(d) The Term Credit..................................... 30
2.11 Interest................................................. 30
2.12 Fees..................................................... 31
(a) Facility Fees....................................... 31
(b) Arrangement, Agency, Bid Loan Fees.................. 31
(c) Upfront Fees........................................ 31
2.13 Computation of Fees and Interest......................... 32
2.14 Payments by the Borrowers................................ 33
2.15 Payments by the Banks to the Agent....................... 33
2.16 Sharing of Payments, Etc................................. 34
2.17 Quarterly Adjustments.................................... 35
2.18 Guaranty................................................. 36
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY................. 36
3.01 Taxes.................................................... 36
3.02 Illegality............................................... 37
3.03 Increased Costs and Reduction of Return.................. 38
3.04 Funding Losses........................................... 39
3.05 Inability to Determine Rates............................. 40
3.06 Survival................................................. 40
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ARTICLE IV
CONDITIONS PRECEDENT.......................... 40
4.01 Conditions of Initial Loans.............................. 40
(a) Credit Agreement, the Guaranty and Notes........... 40
(b) Legal Opinions..................................... 40
(c) Resolutions........................................ 40
(d) Incumbency......................................... 41
(e) Payment of Fees.................................... 41
(f) Certificates....................................... 41
(g) Termination of Existing Agreement.................. 41
(h) Other Documents.................................... 42
4.02 Conditions to All Borrowings............................. 42
(a) Notice of Borrowing. ............................. 42
(b) Continuation of Representations and
Warranties............................................... 42
(c) Financial Statements............................... 42
(d) No Existing Default................................ 42
ARTICLE V
REPRESENTATIONS AND WARRANTIES..................... 43
5.01 Corporate Existence...................................... 43
5.02 Subsidiaries............................................. 43
5.03 Corporate Authorization.................................. 43
5.04 Governmental Authorization............................... 43
5.05 No Contravention......................................... 43
5.06 Binding Effect........................................... 44
5.07 Encumbrances............................................. 44
5.08 Compliance with Laws..................................... 44
5.09 Litigation............................................... 44
5.10 No Default............................................... 44
5.11 Use of Proceeds; Margin Regulations...................... 44
5.12 Regulated Entities....................................... 45
5.13 Financial Statements..................................... 45
5.14 ERISA Compliance......................................... 45
5.15 Swap Obligations......................................... 46
ARTICLE VI
AFFIRMATIVE COVENANTS......................... 46
6.01 Use of Proceeds.......................................... 46
6.02 Preservation of Corporate Existence, Etc................. 46
6.03 Notices.................................................. 47
6.04 Payment of Obligations................................... 48
6.05 Insurance................................................ 48
6.06 Inspection of Property and Books and Records............. 48
6.07 Financial Statements..................................... 48
6.08 ERISA Compliance......................................... 49
ARTICLE VII
NEGATIVE COVENANTS........................... 50
7.01 Funded Debt to Net Worth................................. 50
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7.02 Disposition of Property.................................. 50
7.03 Mergers.................................................. 50
7.04 Encumbrances............................................. 51
7.05 Use of Proceeds.......................................... 51
7.06 ERISA.................................................... 51
ARTICLE VIII
EVENTS OF DEFAULT........................... 52
8.01 Events of Default........................................ 52
8.02 Remedies................................................. 54
8.03 Rights Not Exclusive..................................... 55
8.04 Notice of Default........................................ 55
ARTICLE IX
THE AGENT............................... 55
9.01 Appointment and Authorization; "Agent"................... 55
9.02 Delegation of Duties..................................... 56
9.03 Liability of Agent....................................... 56
9.04 Reliance by Agent........................................ 56
9.05 Notice of Default........................................ 57
9.06 Credit Decision.......................................... 57
9.07 Indemnification of Agent................................. 58
9.08 Agent in Individual Capacity............................. 58
9.09 Successor Agent.......................................... 59
9.10 Withholding Tax.......................................... 60
ARTICLE X
MISCELLANEOUS............................. 61
10.01 Amendments and Waivers.................................. 61
10.02 Notices................................................. 62
10.03 No Waiver; Cumulative Remedies.......................... 63
10.04 Costs and Expenses...................................... 63
10.05 Borrower Indemnification................................ 64
10.06 Payments Set Aside...................................... 64
10.07 Successors and Assigns.................................. 65
10.08 Assignments, Participations, etc........................ 65
10.09 Designated Bidders...................................... 67
10.10 Confidentiality......................................... 67
10.11 Set-off................................................. 68
10.12 Notification of Addresses, Lending Offices,
Etc.......................................................... 68
10.13 Counterparts............................................ 69
10.14 Severability............................................ 69
10.15 No Third Parties Benefited.............................. 69
10.16 Certain Interpretive Provisions......................... 69
10.17 Governing Law; Submission to Jurisdiction............... 70
10.18 Arbitration; Reference Proceeding....................... 71
10.19 Waiver of Jury Trial.................................... 72
10.20 Judgment................................................ 72
10.21 Provisions With Respect to Term Borrower............... 72A
10.22 Entire Agreement....................................... 72A
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SCHEDULES
Schedule 2.01 Commitments
Schedule 5.14(c) ERISA Matters
Schedule 10.02 Lending Offices, Addresses for Notices
EXHIBITS
Exhibit A-1 Form of Notice of Borrowing (Revolving Loans
and Swingline Loans)
Exhibit A-2 Form of Notice of Borrowing (Term Loans)
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of Borrowers' Counsel
Exhibit D-2 Form of Legal Opinion of Term Borrower's
Canadian Counsel
Exhibit D-3 Form of Legal Opinion of Agent's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Invitation for Competitive Bids
Exhibit G Form of Competitive Bid Request
Exhibit H Form of Competitive Bid
Exhibit I Form of Revolving Note
Exhibit J Form of Bid Loan Note
Exhibit K Form of Term Note
Exhibit L Form of Designation Agreement
Exhibit M Form of Guaranty
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of January 31, 1997, among
Louisiana-Pacific Corporation, a corporation organized under the laws of the
State of Delaware (the "Revolving Borrower"), Louisiana-Pacific Canada Ltd., a
corporation organized under the laws of the province of British Columbia, Canada
(the "Term Borrower"), the several financial institutions from time to time
party to this Agreement (collectively, the "Banks"; individually, a "Bank"), and
Bank of America National Trust and Savings Association, as agent for the Banks
and the Designated Bidders.
WITNESSETH THAT:
WHEREAS, the Banks have agreed to make available to the Revolving
Borrower a revolving credit facility with a swingline subfacility upon the terms
and conditions set forth in this Agreement; and
WHEREAS, the Banks have agreed to make available to the Term
Borrower a term loan facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. In addition to the terms defined elsewhere in
this Agreement, the following terms have the meanings indicated for purposes of
this Agreement:
"Absolute Rate" has the meaning specified in subsection
2.06(c)(ii)(D).
"Absolute Rate Auction" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at a
rate determined with reference to the Absolute Rate.
"Agent" means BofA in its capacity as agent for the Banks and the
Designated Bidders hereunder, and any successor agent arising under
Section 9.09.
"Agent-Related Persons" means BofA in its capacity as Agent and any
successor agent arising under Section 9.09, together with their respective
affiliates (including, in the
case of BofA, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and affiliates.
"Agent's Payment Office" means the address for payments set forth on
Schedule 10.02 in relation to the Agent, or such other address as the
Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, in respect of all Committed Loans
outstanding on any date (A) for the period from the Closing Date through
March 31, 1997, (i) 0.1700% for Offshore Rate Committed Loans and 0.0000%
for Base Rate Committed Loans and Swingline Loans, in each case, to the
Revolving Borrower, and (ii) 0.2500% for Offshore Rate Committed Loans and
0.000% for Base Rate Committed Loans, in each case, to the Term Borrower
and (B) from and after April 1, 1997, the percentage specified below
opposite the Interest Coverage Ratio (which ratio shall be calculated for
the relevant four fiscal quarter period) calculated for the periods
described below.
------------------------------------------------------
Applicable Margin with Respect to:
------------------------------------------------------
Revolving Loans
and Swingline Loans Term Loans
Interest Coverage Offshore Base Rate and Offshore
Ratio Rate Swingline Rate Base Rate
------ ---------- ------ ---------
at End of Fiscal
----------------
Quarter
-------
Greater than or equal 0.1700% 0.0000% 0.2500% 0.0000%
to 5.00 to 1.00
Greater than or equal 0.2500% 0.0000% 0.3750% 0.0000%
to 3.00 to 1.00 but
less than 5.00 to
1.00
Less than 3.00 to 0.3250% 0.0000% 0.5000% 0.0000%
1.00
The Applicable Margin for each fiscal quarter commencing on or after April
1, 1997 shall be calculated in reliance on the financial reports delivered
pursuant to subsections 6.07(a) and 6.07(b) and the certificate delivered
with respect thereto pursuant to subsection 6.07(c) with respect to the
fiscal quarter ending immediately before the fiscal quarter in question
(e.g., March 31 financials determine the Applicable Margin for the fiscal
quarter beginning April 1). As such financial reports and certificate are
not required to be delivered hereunder until 45 days (or 90 days in the
case of fiscal year-end financial reports) after the end of the applicable
fiscal quarter, the Applicable Margin for each fiscal quarter shall be
assumed for interim calculation and collection purposes, until delivery of
such financial
2
reports and certificate, to be the same as for the immediately preceding
fiscal quarter. The Applicable Margin shall be adjusted automatically in
accordance with the provisions of Section 2.17 as to all Committed Loans
then outstanding (without regard to the timing of Interest Periods) as of
the effective date of any change in the Applicable Margin.
"Arranger" means BancAmerica Securities, Inc., a Delaware
corporation.
"Bank" has the meaning specified in the introductory clause hereto.
References to the "Banks" shall include BofA, including in its capacity as
the Swingline Bank; for purposes of clarification only, to the extent that
BofA may have any rights or obligations in addition to those of the Banks
due to its status as the Swingline Bank, its status as such will be
specifically referenced.
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate." (The "reference rate" is a
rate set by BofA based upon various factors including BofA's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take effect
at the opening of business on the day specified in the public announcement
of such change.
"Base Rate Committed Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of one or
more Bid Loans made to the Revolving Borrower on the same day by one or
more Banks or Designated Bidders.
"Bid Loan" means a Loan by a Bank or a Designated Bidder to the
Revolving Borrower under Section 2.05, which may be a LIBOR Bid Loan or an
Absolute Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank or
Designated Bidder making such Bid Loan to the Revolving Borrower.
"Bid Loan Note" has the meaning specified in subsection 2.02(b).
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"BofA" means Bank of America National Trust and Savings Association,
a national banking association.
"Borrower" means each of the Revolving Borrower and the Term
Borrower, and "Borrowers" means both the Revolving Borrower and the Term
Borrower.
"Borrowing" means a borrowing hereunder consisting of (i) Committed
Loans of the same Type made to the same Borrower on same day by the Banks,
(ii) Bid Loans made to the Revolving Borrower on the same day by the Banks
or Designated Bidders, or (iii) a Swingline Loan or Loans made to the
Revolving Borrower on the same day by the Swingline Bank, in each case
pursuant to Article II, and, other than in the case of Base Rate Committed
Loans and Swingline Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03, Section 2.06, or Section 2.07, as applicable.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.01 are satisfied or waived by all Banks (or, in the
case of subsection 4.01(e), waived by the Person entitled to receive such
payment).
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment" means, as to each Bank, such Bank's obligation to make
Term Loans pursuant to subsection 2.01(a) and Revolving Loans pursuant to
subsection 2.01(b).
"Committed Borrowing" means a Borrowing hereunder consisting of
Committed Loans made on the same day by the Banks ratably according to
their respective Pro Rata Shares and, in the case of Offshore Rate
Committed Loans, having the same Interest Period.
"Committed Loan" means a Revolving Loan or a Term Loan, and may be
an Offshore Rate Committed Loan or a Base Rate Committed Loan (each, a
"Type" of Committed Loan).
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"Competitive Bid" means an offer by a Bank or a Designated Bidder to
make a Bid Loan in accordance with subsection 2.06(b).
"Competitive Bid Request" has the meaning specified in subsection
2.06(a).
"Compliance Certificate" means a certificate substantially in the
form of Exhibit C.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, a Borrower (a) converts Committed Loans of one Type to
another Type, or (b) continues as Committed Loans of the same Type, but
with a new Interest Period, Committed Loans having Interest Periods
expiring on such date.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Designated Bidder" means an affiliate of a Bank that is an entity
described in clause (i) or (ii) of the definition of "Eligible Assignee"
and that has become a party hereto pursuant to Section 10.09.
"Designation Agreement" means a designation agreement entered into
by a Bank and a Designated Bidder and accepted by the Agent, in
substantially the form of Exhibit L.
"Dollars", "dollars", and "$" means dollars of the United States of
America.
"EBIT" means, for any period, for the Revolving Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP,
the sum of (a) net income (or net loss) for such period plus (b) all
amounts treated as expenses for interest to the extent included in the
determination of such net income (or loss), plus (c) all accrued taxes on
or measured by income to the extent included in the determination of such
net income (or loss); provided, however, that net income (or loss) shall
be computed for these purposes without giving effect to extraordinary
losses or extraordinary gains or the cumulative effect of changes in
accounting principles.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $250,000,000; (ii) 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, and
5
having a combined capital and surplus of at least $250,000,000, provided
that such bank is acting through a branch or agency located in the United
States; and (iii) a Person that is organized under the laws of the United
States, or any state thereof, or under the laws of any other country which
is a member of the OECD, or a political subdivision of any such country,
and acting through a branch or agency located in the United States, and
that is primarily engaged in the business of commercial banking and that
is (A) a Subsidiary of a Bank, (B) a Subsidiary of a Person of which a
Bank is a Subsidiary, or (C) a Person of which a Bank is a Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Revolving Borrower within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o)
of the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Revolving Borrower or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by
the Revolving Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate a Pension Plan or Multiemployer
Plan, the treatment of a Plan amendment as a termination under Section
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition
which might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition
of any liability under Title IV of ERISA, other than PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Revolving Borrower or
any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any event listed in Section 8.01.
"Existing Agreement" has the meaning specified in subsection
4.01(g).
6
"Facility Fee Percentage" means (A) for the period from the Closing
Date through March 31, 1997, 0.0800%, and (B) from and after April 1,
1997, the percentage specified below opposite the Interest Coverage Ratio
(which ratio shall be calculated for the relevant four fiscal quarter
period) calculated for the periods described below.
Interest Coverage Ratio Facility Fee
at End of Fiscal Quarter Percentage
------------------------ ----------
Greater than or equal to
5.00 to 1.00 0.0800%
Greater than or equal to
3.00 to 1.00
but less than 5.00 to 1.00 0.1250%
Less than 3.00 to 1.00 0.1750%
The Facility Fee Percentage for each fiscal quarter commencing on or after
April 1, 1997 shall be calculated in reliance on the financial reports
delivered pursuant to subsections 6.07(a) and 6.07(b) and the certificate
delivered with respect thereto pursuant to subsection 6.07(c) with respect
to the fiscal quarter ending immediately before the fiscal quarter in
question (e.g., March 31 financials determine the Facility Fee Percentage
for the fiscal quarter beginning April 1). As such financial reports and
certificate are not required to be delivered hereunder until 45 days (or
90 days in the case of fiscal year-end financial reports) after the end of
the applicable fiscal quarter, the Facility Fee Percentage for each fiscal
quarter shall be assumed for interim calculation and collection purposes,
until delivery of such financial reports and certificate, to be the same
as for the immediately preceding fiscal quarter. The facility fee payable
hereunder shall be adjusted automatically in accordance with the
provisions of Section 2.17 as of the effective date of any change in the
Facility Fee Percentage.
"FDIC" means the Federal Deposit Insurance Corporation, and any
governmental authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite
the caption "Federal Funds (Effective)"; or, if for any relevant day such
rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Agent of the
rates for
7
the last transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection
2.12(b).
"FRB" means the Board of Governors of the Federal Reserve System,
and any governmental authority succeeding to any of its principal
functions.
"Funded Debt" means, determined on a consolidated basis for the
Revolving Borrower and its Subsidiaries, indebtedness for borrowed money
or liability under a lease which is the primary source of payment of
industrial revenue or pollution control bonds. Funded Debt also includes
Purchase Money Indebtedness, prepayment deposits in respect of sales
contracts and unfunded reserves maintained with respect to pending or
threatened disputes or settlement thereof.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature
and authority within the U.S. accounting profession), which are applicable
to the circumstances as of the date of determination.
"Guaranty" means a guaranty executed by Louisiana-Pacific
Corporation substantially in the form of Exhibit M.
"Indemnified Liabilities" has the meaning specified in Section
10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Interest Coverage Ratio" means, as measured quarterly on the last
day of each fiscal quarter for the four fiscal quarter period then ending,
the ratio of (i) EBIT to (ii) an amount equal to the consolidated interest
expense (including capitalized interest) of the Revolving Borrower and its
Subsidiaries for the four fiscal quarter period then ending calculated in
accordance with GAAP.
"Interest Payment Date" means, (a) as to any Offshore Rate Committed
Loan or Bid Loan, the last day of each Interest Period applicable to such
Loan, (b) as to any Base Rate Committed Loan, the last Business Day of
each calendar quarter and each date such Base Rate Committed Loan is
8
converted into another Type of Committed Loan, and (c) as to any Swingline
Loan, the Business Day agreed upon by the Revolving Borrower and the
Swingline Bank, which will not be later than the fourteenth Business Day
following the Borrowing Date thereof or, if sooner, the date set forth in
clause (a) of the definition of Revolving Termination Date; provided,
however, that (i) if any Interest Period for an Offshore Rate Committed
Loan exceeds three months, the date that falls three months after the
beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date, and (ii) as to any Bid Loan,
such intervening dates prior to the maturity thereof as may be specified
by the Revolving Borrower and agreed to by the applicable Bid Loan Lender
in the applicable Competitive Bid shall also be Interest Payment Dates.
"Interest Period" means, (a) as to any Offshore Rate Committed Loan,
the period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Committed Loan, and ending on the date one,
two, three or six months thereafter as selected by the applicable Borrower
in its Notice of Borrowing or Notice of Conversion/Continuation, as the
case may be; (b) as to any LIBOR Bid Loan, a period of one to twelve
months as selected by the Revolving Borrower in the applicable Competitive
Bid Request; and (c) as to any Absolute Rate Bid Loan, a period of not
less than 7 days and not more than 365 days as selected by the Revolving
Borrower in the applicable Competitive Bid Request;
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, in the case of an Offshore Rate Loan,
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 pertaining to an Offshore Rate Loan
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; and
(iii) no Interest Period for any Term Loan shall extend beyond
the Term Maturity Date and no Interest Period for any Revolving Loan
shall extend beyond the
9
date set forth in clause (a) of the definition of "Revolving
Termination Date".
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any governmental
authority succeeding to any of its principal functions under the Code.
"Lending Office" means, as to any Bank or Designated Bidder, the
office or offices of such Bank or Designated Bidder specified as its
"Lending Office" or "Domestic Lending Office" or "Offshore Lending
Office", as the case may be, on Schedule 10.02, or such other office or
offices as such Bank or Designated Bidder may from time to time notify the
Revolving Borrower and the Agent.
"LIBO Rate" means, for any Interest Period with respect to a LIBOR
Bid Loan the rate of interest per annum determined by the Agent to be the
arithmetic mean (rounded upward to the nearest 1/16th of 1%) of the rates
of interest per annum notified to the Agent by each Reference Bank as the
rate of interest at which dollar deposits in the approximate amount of the
LIBOR Bid Loans to be borrowed in such Bid Loan Borrowing and having a
maturity comparable to such Interest Period would be offered to major
banks in the London interbank market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.
"LIBOR Auction" means a solicitation of Competitive Bids setting
forth a LIBOR Bid Margin pursuant to Section 2.06.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a rate
based upon the LIBO Rate.
"LIBOR Bid Margin" has the meaning specified in subsection
2.06(c)(ii)(C).
"Loan" means an extension of credit by a Bank, the Swingline Bank or
a Designated Bidder, as the case may be, to a Borrower under Article II,
and, in the case of the Revolving Borrower, may be a Revolving Loan, a
Swingline Loan, or a Bid Loan, and, in the case of the Term Borrower, may
be a Term Loan.
"Majority Banks" means (a) at any time prior to the Revolving
Termination Date, or after the Revolving Termination Date if no Loans are
then outstanding, Banks then holding at least 60% of the Revolving
Commitments, and (b) otherwise, Banks then holding at least 60% of the
then
10
aggregate unpaid principal amount of the Loans. For purposes of this
definition, each Bank shall be deemed to hold all outstanding Bid Loans of
such Bank's Designated Bidders.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Revolving Borrower or
any ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has made, or
been obligated to make, contributions.
"Net Worth" means the total, determined on a consolidated basis for
the Revolving Borrower and its Subsidiaries, of (1) the capital accounts
as determined by GAAP and (2) debt of the Revolving Borrower which is
subordinated by the holders thereof to the Loans and other sums now or
hereafter owed by the Borrowers or their Subsidiaries to the Agent, the
Banks or the Designated Bidders with respect to the Loans or otherwise
under this Agreement or the Notes, by arrangements or agreements in form
and substance satisfactory to the Majority Banks.
"Note" means a Revolving Note, a Term Note or a Bid Loan Note and
"Notes" means all of the Revolving Notes, the Term Notes and the Bid Loan
Notes.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A-1 in the case of the Revolving Borrower and Exhibit A-2 in the
case of the Term Borrower.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit B.
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Committed Loans comprising part of the same Borrowing, the
rate of interest per annum (rounded upward to the next 1/16th of 1%)
determined by the Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day
(whether or not applicable to any Bank) under regulations issued
from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement)
11
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum determined by the Agent
to be the arithmetic mean (rounded upward to the next 1/16th of 1%)
of the rates of interest per annum notified to the Agent by each
Reference Bank as the rate of interest at which dollar deposits in
the approximate amount of the amount of the Loan to be made or
continued as, or converted into, an Offshore Rate Committed Loan by
such Reference Bank and having a maturity comparable to such
Interest Period would be offered to major banks in the London
interbank market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Rate Committed Loan" means any Committed Loan that bears
interest based on the Offshore Rate.
"Offshore Rate Loan" means any LIBOR Bid Loan or any Offshore Rate
Committed Loan.
"Other Taxes" means any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies (but not
including such taxes (including income taxes or franchise taxes) as are
imposed on or measured by each Bank's or Designated Bidder's net income)
which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
or any other documents or instruments given in connection herewith.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
governmental authority succeeding to any of its principal functions under
ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Revolving Borrower sponsors
or maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five plan years.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of either Borrower or any of their Subsidiaries existing or
arising under Swap Contracts, provided that each of the following criteria
is satisfied:
12
(a) such obligations are (or were) entered into by such Person for the
purpose of directly mitigating risks associated with liabilities,
commitments or assets held or reasonably anticipated by such Person, or
changes in the value of securities issued by such Person in conjunction
with a securities repurchase program not otherwise prohibited hereunder,
and not for purposes of speculation or taking a "market view;" and (b)
such Swap Contracts do not contain any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments
on outstanding transactions to the defaulting party.
"Person" means any individual, association, joint venture,
partnership, joint stock company, corporation, trust, business trust,
government, governmental agency, governmental subdivision or other entity.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Revolving Borrower sponsors or maintains or to which the
Revolving Borrower makes, is making, or is obligated to make contributions
and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, (i) with respect
to Loans other than Term Loans, the percentage equivalent (expressed as a
decimal, rounded to the eighth decimal place) at such time of such Bank's
Revolving Commitment divided by the combined Revolving Commitments of all
Banks, (ii) with respect to Term Loans, the percentage equivalent
(expressed as a decimal, rounded to the eighth decimal place) at such time
of the principal amount of such Bank's Term Loan divided by the combined
Term Loans of all Banks.
"Purchase Money Indebtedness" means indebtedness incurred for the
purchase of assets either by way of deferred payment of the purchase price
thereof or by borrowing in order to finance such purchase.
"Reference Banks" means BofA and The Chase Manhattan Bank.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
of a governmental authority, in each case applicable to or binding upon
the
13
Person or any of its property or to which the Person or any of its
property is subject.
"Revolving Borrower" is defined in the preamble.
"Revolving Commitment" has the meaning specified in subsection
2.01(b).
"Revolving Loan" has the meaning specified in subsection 2.01(b).
"Revolving Note" has the meaning specified in subsection 2.02(b).
"Revolving Termination Date" means the earlier to occur of:
(a) January 31, 2002; and
(b) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50%
of the voting stock or other equity interests (in the case of Persons
other than corporations) is owned or controlled directly or indirectly by
the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the Revolving
Borrower.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or xxxx option, interest rate option, forward
foreign exchange transaction, cap, collar or floor transaction, currency
swap, cross-currency rate swap, swaption, currency option or any other,
similar transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing
any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the
14
xxxx-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may include any Bank).
"Swingline Bank" means BofA.
"Swingline Borrowing" means a Borrowing hereunder consisting of one
or more Swingline Loans made to the Revolving Borrower on the same day by
the Swingline Bank.
"Swingline Clean-Up Day" has the meaning specified in subsection
2.09(c).
"Swingline Commitment" has the meaning specified in subsection
2.01(c).
"Swingline Loan" has the meaning specified in subsection 2.01(c).
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank, each Designated Bidder and
the Agent, such taxes (including income taxes or franchise taxes) as are
imposed on or measured by such Person's net income by the jurisdiction (or
any political subdivision thereof) under the laws of which such Person is
organized or maintains a lending office.
"Term Borrower" is defined in the preamble.
"Term Commitment" means $125,000,000.
"Term Loan" has the meaning specified in subsection 2.01(a).
"Term Maturity Date" means February 1, 2002.
"Term Note" has the meaning specified in subsection 2.02(b).
"Type" has the meaning specified in the definition of "Committed
Loan."
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding that Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." each means the United States of America.
15
1.02 Accounting Principles. All financial computations required
under this Agreement shall be made, and all financial information required under
this Agreement shall be prepared, in accordance with GAAP, consistently applied.
References herein to "fiscal year" and "fiscal quarter" refer to such fiscal
periods of the Borrowers.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. (a) The Term Credit. Each Bank
severally agrees, on the terms and conditions set forth herein, to make a single
loan to the Term Borrower (each such loan, a "Term Loan") on the Closing Date in
an amount not to exceed the amount set forth on Schedule 2.01 opposite such
Bank's name under the heading "Term Commitment". Each Bank's Term Loan shall not
exceed its pro rata share (as set forth on Schedule 2.01 opposite such Bank's
name under the heading "Pro Rata Share (Term Loans)") of the aggregate Term
Loans made on the Closing Date. Amounts borrowed as Term Loans which are repaid
or prepaid by the Term Borrower may not be reborrowed.
(b) The Revolving Credit. Each Bank severally agrees, on the terms
and conditions set forth herein, to make loans to the Revolving Borrower (each
such loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding, together with such Bank's
participation, if any, in Swingline Loans then outstanding, the amount set forth
on Schedule 2.01 under the heading "Revolving Commitment" (such amount as the
same may be reduced under Section 2.08 or as a result of one or more assignments
under Section 10.08, the Bank's "Revolving Commitment"); provided, however,
that, after giving effect to any Committed Borrowing of Revolving Loans, the
aggregate principal amount of all outstanding Revolving Loans, together with the
aggregate principal amount of all Bid Loans and Swingline Loans outstanding,
shall not at any time exceed the combined Revolving Commitments. Within the
limits of each Bank's Revolving Commitment, and subject to the other terms and
conditions hereof, the Revolving Borrower may borrow under this subsection
2.01(b), prepay under Section 2.09 and reborrow under this subsection 2.01(b).
(c) The Swingline Bank agrees, on the terms and conditions set forth
herein, to make a portion of the combined Revolving Commitments of all the Banks
available to the Revolving Borrower by making swingline loans (each such loan a
"Swingline Loan") to the Revolving Borrower from time to time on any Business
Day during the period from the Closing Date to the Revolving Termination Date,
in an aggregate principal amount not to exceed at any time outstanding
$25,000,000 (as such amount may be reduced under Section 2.08 or as a result of
one or more
16
assignments under Section 10.08, the Swingline Bank's "Swingline Commitment"),
notwithstanding the fact that such Swingline Loans, when aggregated with the
Swingline Bank's outstanding Revolving Loans, may exceed the Swingline Bank's
Revolving Commitment; provided, however, that, after giving effect to any
Borrowing of a Swingline Loan, the aggregate principal amount of all outstanding
Revolving Loans, Swingline Loans and Bid Loans shall not at any time exceed the
combined Revolving Commitments. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Revolving Borrower may borrow under this
subsection 2.01(c), prepay under Section 2.09 and reborrow under this subsection
2.01(c).
2.02 Loan Accounts; Notes; Designation of Revolving Borrower.
(a) The Loans made by each Bank or Designated Bidder shall be
evidenced by one or more loan accounts or records maintained by such Bank or
Designated Bidder in the ordinary course of business. The loan accounts or
records maintained by the Agent and each Bank or Designated Bidder shall be
rebuttable presumptive evidence of the amount of the Loans made by the Banks and
Designated Bidders to each Borrower and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of either Borrower hereunder or under any Note
or the Revolving Borrower under the Guaranty to pay any amount owing with
respect to the Loans.
(b) Upon the request of any Bank or Designated Bidder made through
the Agent, the Revolving Loans, Swingline Loans and Bid Loans made by such Bank
or Designated Bidder to the Revolving Borrower may be evidenced by one or more
notes in the form of Exhibit I (a "Revolving Note") or Exhibit J (a "Bid Loan
Note") as applicable, instead of loan accounts. Upon the request of any Bank
made through the Agent, the Term Loan made by such Bank to the Term Borrower may
be evidenced by a note in the form of Exhibit K (a "Term Note"), instead of loan
accounts. Each such Bank or Designated Bidder shall endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made by it and
the amount of each payment of principal made by the applicable Borrower with
respect thereto. Each such Bank and Designated Bidder is irrevocably authorized
by the applicable Borrower to endorse its Note(s) and each Bank's or Designated
Bidder's notations on its Note(s) or other loan accounts or records shall be
rebuttable presumptive evidence of the amount of the Loans made by such Bank or
Designated Bidder to the applicable Borrower and the payments thereon; provided,
however, that the failure of a Bank or Designated Bidder to make, or an error in
making, a notation on its Note(s) or other loan accounts or records with respect
to any Loan shall not limit or otherwise affect the obligations of either
Borrower hereunder or under any such Note or of the Revolving Borrower under the
Guaranty to such Bank or Designated Bidder.
17
(c) The Term Borrower hereby irrevocably appoints the Revolving Borrower
as its agent and attorney-in-fact, authorized to execute and deliver on its
behalf any and all statements, certificates, documents and agreements as may be
required or contemplated hereunder, including Notices of Borrowing and Notices
of Conversion/Continuation, and to receive any and all notices and other
communications from the Agent and the Banks hereunder and to perform on the Term
Borrower's behalf any and all other acts, deeds and requirements of this
Agreement.
2.03 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon the applicable
Borrower's irrevocable written notice delivered to the Agent in the form of a
Notice of Borrowing (which notice must be received by the Agent prior to 9:00
a.m. (San Francisco time)) (i) three Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Committed Loans, and (ii) one
Business Day prior to the requested Borrowing Date, in the case of Base Rate
Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which shall
be in an aggregate minimum amount of $5,000,000 or any multiple of
$1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Committed
Borrowing; and
(D) the duration of the Interest Period applicable to
any Offshore Rate Committed Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of the Interest
Period for any Committed Borrowing comprised of Offshore Rate Loans,
such Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Committed Borrowing.
(c) Each Bank will make the amount of its Term Loan available to the
Agent for the account of the Term Borrower, or its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Revolving
Borrower, in the case of a Revolving Loan, in each case at the Agent's Payment
Office by 11:00 a.m. (San Francisco time) on the Borrowing Date requested by the
applicable Borrower in funds immediately available to the Agent. The proceeds of
all such Committed Loans received in immediately available funds by the Agent by
11:00 a.m. (San Francisco time) on such Borrowing Date will then be made
available to the applicable Borrower by the Agent in immediately
18
available funds at such office by crediting by 1:00 p.m. (San Francisco time) on
such date the account of the applicable Borrower on the books of BofA with the
aggregate of the amounts made available in immediately available funds to the
Agent by the Banks; provided, that, if on such Borrowing Date all or any portion
of the proceeds thereof shall then be required to be applied to the repayment of
any outstanding Swingline Loans pursuant to Section 2.07, such proceeds or
portion thereof shall be applied to the repayment of such Swingline Loans.
Subject to the proviso in the immediately preceding sentence, any proceeds of
such Committed Loans received in immediately available funds by the Agent by
11:00 a.m. (San Francisco time) on such Borrowing Date and not credited to the
applicable Borrower by 1:00 p.m. (San Francisco time) on such date shall be
deemed to have been disbursed on the following Business Day and interest shall
begin to accrue thereon on such following Business Day; provided, that, if the
failure to credit any such funds received from a Bank by the Agent in
immediately available funds by 11:00 a.m. (San Francisco time) on such Borrowing
Date to the applicable Borrower by 1:00 p.m. (San Francisco time) on such date
is due to the gross negligence or willful misconduct of the Agent, then the
Agent shall pay to such Bank interest on such funds at the Federal Funds Rate
from such date of receipt by the Agent to the following Business Day.
(d) After giving effect to any Committed Borrowing, there may not be
more than seven different Interest Periods in effect in respect of all Committed
Loans and Bid Loans together then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings.
(a) The applicable Borrower may, upon irrevocable written notice to
the Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest Period,
in the case of any other Type of Committed Loans, to convert any such
Committed Loans (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Committed Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Committed Loans having Interest Periods expiring
on such day (or any part thereof in an amount not less than $5,000,000, or
that is in an integral multiple of $1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Committed Borrowing is reduced, by payment, prepayment,
or conversion of part thereof to
19
be less than $5,000,000, such Offshore Rate Committed Loans shall automatically
convert into Base Rate Committed Loans, and on and after such date the right of
the applicable Borrower to continue such Committed Loans as, and convert such
Committed Loans into, Offshore Rate Committed Loans shall terminate.
(b) The applicable Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 9:00 a.m.
(San Francisco time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted into or
continued as Offshore Rate Committed Loans and (ii) one Business Day in advance
of the Conversion/Continuation Date, if the Committed Loans are to be converted
into Base Rate Committed Loans, specifying:
(A) the applicable Borrower;
(B) the proposed Conversion/Continuation Date;
(C) the aggregate amount of Committed Loans to be
converted or renewed;
(D) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(E) other than in the case of conversions into Base Rate
Committed Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Committed Loans, the applicable Borrower has failed to select
timely a new Interest Period to be applicable to such Offshore Rate Committed
Loans, or if any Default or Event of Default then exists, the applicable
Borrower shall be deemed to have elected to convert such Offshore Rate Committed
Loans into Base Rate Committed Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
applicable Borrower, the Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Committed Loans with respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise agree, during the existence
of a Default or Event of Default, no Borrower may elect to have a Committed Loan
converted into or continued as an Offshore Rate Committed Loan.
20
(f) After giving effect to any conversion or continuation of
Committed Loans, there may not be more than seven different Interest Periods in
effect in respect of all Committed Loans and Bid Loans together then
outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bank severally agrees that the Revolving Borrower may, as set
forth in Section 2.06, from time to time request the Banks and Designated
Bidders prior to the Revolving Termination Date to submit offers to make Bid
Loans to the Revolving Borrower; provided, however, that the Banks and
Designated Bidders may, but shall have no obligation to, submit such offers and
the Revolving Borrower may, but shall have no obligation to, accept any such
offers, and any Bank may designate a Designated Bidder to make such offers from
time to time and, if such offers are accepted by the Revolving Borrower, to make
such Bid Loans; and provided, further, that at no time shall (a) the outstanding
aggregate principal amount of all Bid Loans made by all Banks and Designated
Bidders plus the outstanding aggregate principal amount of all Revolving Loans
made by all Banks plus the aggregate principal amount of all Swingline Loans
then outstanding exceed the combined Revolving Commitments or (b) the number of
Interest Periods for Bid Loans then outstanding plus the number of Interest
Periods for Committed Loans then outstanding exceed seven.
2.06 Procedure for Bid Borrowings.
(a) When the Revolving Borrower wishes to request the Banks and
Designated Bidders to submit offers to make Bid Loans hereunder, it shall
transmit to the Agent by telephone call followed promptly by facsimile
transmission a notice in substantially the form of Exhibit G (a "Competitive Bid
Request") so as to be received no later than 9:00 a.m. (San Francisco time) (x)
four Business Days prior to the date of a proposed Bid Borrowing in the case of
a LIBOR Auction, or (y) two Business Days prior to the date of a proposed Bid
Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Bid Borrowing, which shall
be a minimum amount of $10,000,000 or in multiples of $1,000,000 in excess
thereof;
(iii) whether the Competitive Bids requested are to be for
LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period" herein.
21
Subject to subsection 2.06(c), the Revolving Borrower may not request
Competitive Bids for more than three Interest Periods in a single Competitive
Bid Request and may not request Competitive Bids more than once in any period of
five Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will
promptly send to the Banks and Designated Bidders by facsimile transmission an
Invitation for Competitive Bids, which shall constitute an invitation by the
Revolving Borrower to each Bank and Designated Bidder to submit Competitive Bids
offering to make the Bid Loans to which such Competitive Bid Request relates in
accordance with this Section 2.06.
(c) (i) Each Bank and Designated Bidder may at its discretion submit
a Competitive Bid containing an offer or offers to make Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive Bid must
comply with the requirements of this subsection 2.06(c) and must be
submitted to the Agent by facsimile transmission at the Agent's office for
notices set forth on Schedule 10.02 (and immediately confirmed by a
telephone call) not later than (1) 6:30 a.m. (San Francisco time) three
Business Days prior to the proposed date of Borrowing, in the case of a
LIBOR Auction or (2) 6:30 a.m. (San Francisco time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction; provided that
Competitive Bids submitted by the Agent (or any affiliate of the Agent) in
the capacity of a Bank or Designated Bidder may be submitted, and may only
be submitted, if the Agent or such affiliate notifies the Revolving
Borrower of the terms of the offer or offers contained therein not later
than (A) 6:15 a.m. (San Francisco time) three Business Days prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (B) 6:15
a.m. (San Francisco time) on the proposed date of Borrowing, in the case
of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the form
of Exhibit H, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be
equal to, greater than or less than the Commitment of the quoting
Bank, (y) must be $10,000,000 or in multiples of $1,000,000 in
excess thereof, and (z) may not exceed the principal amount of Bid
Loans for which Competitive Bids were requested;
22
(C) in case the Revolving Borrower elects a LIBOR
Auction, the margin above or below LIBOR (the "LIBOR Bid Margin")
offered for each such Bid Loan, expressed in multiples of 1/1000th
of one basis point to be added to or subtracted from the applicable
LIBOR and the Interest Period applicable thereto;
(D) in case the Revolving Borrower elects an Absolute
Rate Auction, the rate of interest per annum expressed in multiples
of 1/1000th of one basis point (the "Absolute Rate") offered for
each such Bid Loan; and
(E) the identity of the quoting Bank or Designated
Bidder.
A Competitive Bid may contain up to three separate offers by the quoting
Bank or Designated Bidder with respect to each Interest Period specified
in the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be
disregarded if it:
(A) is not substantially in conformity with Exhibit H or
does not specify all of the information required by subsection
(c)(ii) of this Section;
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection
(c)(i) of this Section.
(d) Promptly on receipt and not later than 7:00 a.m. (San Francisco
time) three Business Days prior to the proposed date of Borrowing, in the case
of a LIBOR Auction, or 7:00 a.m. (San Francisco time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction, the Agent will notify the
Revolving Borrower of the terms (i) of any Competitive Bid submitted by a Bank
or Designated Bidder that is in accordance with subsection 2.06(c), and (ii) of
any Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Bank or Designated Bidder with
respect to the same Competitive Bid Request. Any such subsequent Competitive Bid
shall be disregarded by the Agent unless such subsequent Competitive Bid is
submitted solely to correct a manifest error in such former Competitive Bid and
only if
23
received within the times set forth in subsection 2.06(c). The Agent's notice to
the Revolving Borrower shall specify (1) the aggregate principal amount of Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Request; and (2) the respective principal amounts
and LIBOR Bid Margins or Absolute Rates, as the case may be, so offered. Subject
only to the provisions of Sections 3.02, 3.05 and 4.02 hereof and the provisions
of this subsection (d), any Competitive Bid shall be irrevocable except with the
written consent of the Agent given on the written instructions of the Revolving
Borrower.
(e) Not later than 7:30 a.m. (San Francisco time) three Business
Days prior to the proposed date of Borrowing, in the case of a LIBOR Auction, or
7:30 a.m. (San Francisco time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction, the Revolving Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.06(d). The Revolving Borrower shall be under no obligation to
accept any offer and may choose to reject all offers. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers for each
Interest Period that is accepted. The Revolving Borrower may accept any
Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) the principal amount of each Bid Borrowing must be
$10,000,000 or in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of
ascending LIBOR Bid Margins or Absolute Rates within each Interest Period,
as the case may be; and
(iv) the Revolving Borrower may not accept any offer that is
described in subsection 2.06(c)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(f) If offers are made by two or more Banks or Designated Bidders
with the same LIBOR Bid Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which such
offers are accepted for the related Interest Period, the principal amount of Bid
Loans in respect of which such offers are accepted shall be allocated by the
Agent among such Banks or Designated Bidders as nearly as possible (in such
multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determination by
the Agent of
24
the amounts of Bid Loans shall be conclusive in the absence of manifest error.
(g) (i) The Agent will promptly notify each Bank or Designated
Bidder having submitted a Competitive Bid if its offer has been accepted
and, if its offer has been accepted, of the amount of the Bid Loan or Bid
Loans to be made by it on the date of the Bid Borrowing.
(ii) Each Bank or Designated Bidder, which has received notice
pursuant to subsection 2.06(g)(i) that its Competitive Bid has been
accepted, shall make the amounts of such Bid Loans available to the Agent
for the account of the Revolving Borrower at the Agent's Payment Office,
by 11:00 a.m. (San Francisco time) on such date of Bid Borrowing, in funds
immediately available to the Agent for the account of the Revolving
Borrower at the Agent's Payment Office. The proceeds of all such Bid Loans
received in immediately available funds by the Agent by 11:00 a.m. (San
Francisco time) on such date of Bid Borrowing will then be made available
to the Revolving Borrower by the Agent in immediately available funds at
such office by crediting by 1:00 p.m. (San Francisco time) on such date
the account of the Revolving Borrower on the books of BofA with the
aggregate of the amounts made available in immediately available funds to
the Agent by the Banks. Any proceeds of such Bid Loans received in
immediately available funds by the Agent by 11:00 a.m. (San Francisco
time) on such date of Bid Borrowing and not credited to the Revolving
Borrower by 1:00 p.m. (San Francisco time) on such date shall be deemed to
have been disbursed on the following Business Day and interest shall begin
to accrue thereon on such following Business Day; provided, that, if the
failure to credit any such funds received from a Bank or Designated Bidder
by the Agent in immediately available funds by 11:00 a.m. (San Francisco
time) on such date of Bid Borrowing to the Revolving Borrower by 1:00 p.m.
(San Francisco time) on such date is due to the gross negligence or
willful misconduct of the Agent, then the Agent shall pay to such Bank or
Designated Bidder interest on such funds at the Federal Funds Rate from
such date of receipt by the Agent to the following Business Day.
(iii) Promptly following each Bid Borrowing, the Agent shall
notify each Bank and Designated Bidder of the ranges of bids submitted and
the highest and lowest bids accepted for each Interest Period requested by
the Revolving Borrower and the aggregate amount borrowed pursuant to such
Bid Borrowing and the Interest Period applicable thereto.
25
(iv) From time to time, the Revolving Borrower and the Banks
and Designated Bidders shall furnish such information to the Agent as the
Agent may request relating to the making of Bid Loans, including the
amounts, interest rates, dates of borrowings and maturities thereof, for
purposes of the allocation of amounts received from the Revolving Borrower
for payment of all amounts owing hereunder.
(h) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of Borrowing
all applicable conditions to funding referenced in Sections 3.02, 3.05 and 4.02
hereof are satisfied, the Banks and Designated Bidders whose offers the
Revolving Borrower has accepted will fund each Bid Loan so accepted. Nothing in
this Section 2.06 shall be construed as a right of first offer in favor of the
Banks or Designated Bidders or to otherwise limit the ability of the Revolving
Borrower to request and accept credit facilities from any Person (including any
of the Banks or Designated Bidders), provided that no Default or Event of
Default would otherwise arise or exist as a result of the Revolving Borrower
executing, delivering or performing under such credit facilities.
2.07 Procedure for Swingline Loans. (a) Each Borrowing of a Swingline Loan
shall be made upon the Revolving Borrower's irrevocable written notice delivered
to the Agent (with a copy to the Swingline Bank) in the form of a Notice of
Borrowing (which notice must be received by the Agent and the Swingline Bank
prior to 11:00 a.m. (San Francisco time) on the requested Borrowing Date,
specifying: (i) the amount of such Swingline Loan; and (ii) the requested
Borrowing Date, which shall be a Business Day. Upon receipt of the Notice of
Borrowing, the Swingline Bank will immediately confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of the Notice of
Borrowing from the Revolving Borrower and, if not, the Swingline Bank will
provide the Agent with a copy thereof.
(b) Unless the Swingline Bank has received notice prior to 2:00 p.m.
(San Francisco time) on the relevant Swingline Borrowing Date from the Agent
(including at the request of any Bank) (i) directing the Swingline Bank not to
make the requested Swingline Loan as a result of the limitation set forth in the
proviso set forth in Section 2.01(b), or (ii) that one or more conditions
specified in Article IV are not then satisfied; then, subject to the terms and
conditions hereof, the Swingline Bank will, not later than 3:00 p.m. (San
Francisco time) on the Borrowing Date specified in such Notice of Borrowing,
make the amount of the requested Swingline Loan available to the Agent for the
account of the Revolving Borrower at the Agent's Payment Office in immediately
available funds. The proceeds of such Swingline Loan received in immediately
available funds by the Agent by 3:00 p.m. (San Francisco time) on such Borrowing
Date will then be made available to the Revolving Borrower by the
26
Agent in immediately available funds by crediting the account of the Revolving
Borrower on the books of BofA with the amount made available in immediately
available funds to the Agent by the Swingline Bank. Each Swingline Borrowing
pursuant to this Section shall be in an aggregate principal amount equal to
$1,000,000 or an integral multiple of $100,000 in excess thereof, unless
otherwise agreed by the Swingline Bank.
(c) After giving effect to any Borrowing of a Swingline Loan, there
may not be more than three different Swingline Loans outstanding at any one
time.
(d) The Agent will notify the Banks of any Borrowing of a Swingline
Loan or repayment thereof promptly after any such Borrowing or repayment.
(e) If (i) any Swingline Loan shall remain outstanding at 9:00 a.m.
(San Francisco time) on the Business Day immediately prior to a Swingline
Clean-Up Day and by such time on such Business Day the Agent shall have received
neither (A) a Notice of Borrowing delivered pursuant to Section 2.03 requesting
that Committed Loans be made pursuant to Section 2.01(b) on the Swingline
Clean-Up Day in an amount at least equal to the principal amount of such
Swingline Loan, nor (B) any other notice indicating the Revolving Borrower's
intent to repay such Swingline Loan with funds obtained from other sources, or
(ii) any Swingline Loans shall remain outstanding during the existence of a
Default or Event of Default and the Swingline Bank shall in its sole discretion
notify the Agent that the Swingline Bank desires that such Swingline Loans be
converted into Committed Loans; then, the Agent shall be deemed to have received
a Notice of Borrowing from the Revolving Borrower pursuant to Section 2.03
requesting that Base Rate Committed Loans be made pursuant to Section 2.01(b) on
such Swingline Clean-Up Day (in the case of the circumstances described in
clause (i) above) or on the first Business Day subsequent to the date of such
notice from the Swingline Bank (in the case of the circumstances described in
clause (ii) above) in an amount equal to the aggregate amount of such Swingline
Loans, and the procedures set forth in Sections 2.03(b) and 2.03(c) shall be
followed in making such Base Rate Committed Loans; provided, that such Base Rate
Committed Loans shall be made notwithstanding the Revolving Borrower's failure
to comply with the conditions specified in Section 4.02 and notwithstanding that
the aggregate amount of such Swingline Loans is less than the minimum amount for
borrowing set forth in Section 2.03(a); and provided, further, that if a
Borrowing of Committed Loans becomes legally impracticable and if so required by
the Swingline Bank at the time such Committed Loans are required to be made by
the Banks in accordance with this subsection 2.07(e), each Bank agrees that in
lieu of making Committed Loans as described above, such Bank shall purchase a
participation from the Swingline Bank in the applicable Swingline Loans in an
amount equal to such Bank's Pro Rata Share of the aggregate principal amount of
such Swingline Loans, and the
27
procedures set forth in Sections 2.03(b) and 2.03(c) shall be followed in
connection with the purchases of such participations. The proceeds of such Base
Rate Committed Loans or purchases of participations, as the case may be, shall
be applied to repay such Swingline Loans. A copy of each notice given by the
Agent to the Banks pursuant to this subsection 2.07(e) with respect to the
making of Committed Loans or the purchases of participations, as the case may
be, shall be promptly delivered by the Agent to the Revolving Borrower. Each
Bank's obligation in accordance with this Agreement to make the Committed Loans
or purchase the participations, as contemplated by this subsection 2.07(e),
shall be absolute and unconditional and shall not be affected by any
circumstance (except the Swingline Bank's funding of a Swingline Loan when it
has received a notice under subsection 2.07(b)(i) or (ii)), including (1) any
set-off, counterclaim, recoupment, defense or other right which such Bank may
have against the Swingline Bank, the Revolving Borrower or any other Person for
any reason whatsoever; (2) the occurrence or continuance of a Default or an
Event of Default; or (3) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided, that, nothing in this
Section 2.07 shall require any Bank to fund a Committed Loan or purchase a
participation to the extent that such Committed Loan or participation interest,
when aggregated with such Bank's then-outstanding Committed Loans and
participation interests, would exceed such Bank's Commitment.
2.08 Voluntary Termination or Reduction of Commitments. The Revolving
Borrower may, upon not less than three Business Days' prior notice to the Agent,
terminate the Revolving Commitments, or permanently reduce the Revolving
Commitments by an aggregate minimum amount of $10,000,000 or any integral
multiple of $1,000,000 in excess thereof; unless, after giving effect thereto
and to any prepayments of Revolving Loans or Swingline Loans made on the
effective date thereof, (i) the then-outstanding principal amount of Revolving
Loans, Bid Loans and Swingline Loans would exceed the amount of the combined
Revolving Commitments then in effect, or (ii) the then-outstanding principal
amount of all Swingline Loans would exceed the amount of the Swingline
Commitment then in effect, as adjusted pursuant to the last sentence of this
Section 2.08. Once reduced in accordance with this Section, the Revolving
Commitments may not be increased. Any reduction of the Revolving Commitments
shall be applied to each Bank's Revolving Commitment according to its Pro Rata
Share. All accrued facility fees to, but not including, the effective date of
any reduction or termination of the Revolving Commitments, shall be paid on the
effective date of such reduction or termination. At no time shall the Swingline
Commitment exceed the combined Revolving Commitments or the Revolving Commitment
of the Swingline Bank and any reduction of the Revolving Commitments or the
Revolving Commitment of the Swingline Bank which reduces the combined Revolving
Commitments or the Swingline Bank's Revolving Commitment, respectively, below
the then-current amount of the Swingline Commitment shall result
28
in an automatic corresponding reduction of the Swingline Commitment to the
amount of the combined Revolving Commitments or the Swingline Bank's Revolving
Commitment, respectively, as so reduced, without any action on the part of the
Swingline Bank. At the close of business on the Closing Date, the Term
Commitments shall automatically be reduced to zero.
2.09 Prepayments. (a) Subject to Section 3.04, each Borrower may, at any
time or from time to time, upon irrevocable notice to the Agent, ratably prepay
Committed Loans or Swingline Loans in whole or in part, and, in the case of
Committed Loans, in minimum amounts of $5,000,000 or any multiple of $1,000,000
in excess thereof. Such notice of prepayment shall specify the date and amount
of such prepayment, the applicable Borrower, whether such prepayment is of
Committed Loans or Swingline Loans, or a combination thereof and, if applicable,
the Type(s) of Committed Loans to be prepaid, and must be received by the Agent
prior to 9:00 a.m. (San Francisco time) (i) three Business Days prior to the
proposed date of prepayment in the case of Offshore Rate Committed Loans, (ii)
one Business Day prior to the proposed date of prepayment in the case of Base
Rate Committed Loans, and (iii) on the proposed date of prepayment in the case
of Swingline Loans. The Agent will promptly notify each Bank of its receipt of
any such notice, and, if applicable, of such Bank's Pro Rata Share of such
prepayment. If such notice is given by a Borrower, such Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to such
date on the amount prepaid and any amounts required pursuant to Section 3.04.
(b) Bid Loans may not be voluntarily prepaid other than with the
consent of the applicable Bid Loan Lender, to be given or withheld in its sole
discretion.
(c) (i) If following any reduction of the Swingline Commitment
pursuant to Section 2.08 the aggregate outstanding principal amount of Swingline
Loans would exceed the Swingline Commitment as reduced, the Revolving Borrower
shall prepay without notice or demand on the reduction date of the Swingline
Commitment the outstanding principal amount of the Swingline Loans in an amount
equal to the excess of the Swingline Loans over the Swingline Commitment as so
reduced, and (ii) so that for one Business Day during each successive two
calendar week period the aggregate principal amount of Swingline Loans shall be
$0 (a "Swingline Clean-Up Day"), the Revolving Borrower shall prepay without
notice or demand on the Swingline Clean-Up Day the outstanding principal amount
of the Swingline Loans (which Swingline Loans may not be reborrowed until such
Swingline CleanUp Day has ended).
29
2.10 Repayment.
(a) The Revolving Credit. The Revolving Borrower shall repay to the
Banks on the Revolving Termination Date the aggregate principal amount of
Revolving Loans outstanding on such date.
(b) Bid Loans. The Revolving Borrower shall repay each Bid Loan on
the last day of the relevant Interest Period.
(c) Swingline Loans. The Revolving Borrower shall repay to the
Swingline Bank in full on the Revolving Termination Date the aggregate principal
amount of the Swingline Loans outstanding on such date.
(d) The Term Credit. The Term Borrower shall repay to the Banks on
the Term Maturity Date the aggregate principal amount of Term Loans outstanding
on such date.
2.11 Interest.
(a) (i) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be (and subject to
the applicable Borrower's right to convert to other Types of Committed Loans
under Section 2.04), plus the Applicable Margin, (ii) each Swingline Loan shall
bear interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Base Rate plus the Applicable
Margin or at such other rate not in excess of the Base Rate plus the Applicable
Margin agreed to by the Swingline Bank in its sole discretion at the time of the
applicable Swingline Borrowing, and (iii) each Bid Loan shall bear interest on
the outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the LIBO Rate plus (or minus) the LIBOR Bid Margin or at
the Absolute Rate, as the case may be.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Committed Loans or Swingline Loans under Section 2.09 for the portion of the
Loans so prepaid and upon payment (including prepayment) in full thereof and,
during the existence of any Event of Default, interest shall be paid on demand
of the Agent at the request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, if any amount of
principal of or interest on any Loan or any other amount payable hereunder or
under any other document or instrument given in connection herewith is not paid
in full when due (whether at stated maturity, by acceleration, demand or
otherwise), each Borrower agrees to pay interest on such unpaid principal or
other amount, from the date such amount becomes due
30
until the date such amount is paid in full, and after as well as before any
entry of judgment thereon to the extent permitted by law, payable on demand, at
a fluctuating rate per annum equal to the Base Rate plus 1%.
(d) Anything herein to the contrary notwithstanding, the obligations
of each Borrower to any Bank or Designated Bidder hereunder shall be subject to
the limitation that payments of interest shall not be required for any period
for which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank or Designated Bidder
would be contrary to the provisions of any law applicable to such Bank or
Designated Bidder limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Bank or Designated Bidder, and in
such event each Borrower shall pay such Bank or Designated Bidder interest at
the highest rate permitted by applicable law.
2.12 Fees.
(a) Facility Fees. The Revolving Borrower shall pay to the Agent for
the account of each Bank a facility fee on the full amount of such Bank's
Revolving Commitment (regardless of usage), computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter, at a rate per annum
equal to the Facility Fee Percentage. Such facility fee shall accrue from the
Closing Date to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on March 31, 1997 through the Revolving Termination Date, with the
final payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Revolving Commitments under
Section 2.08, the accrued facility fee calculated for the period ending on such
date shall also be paid on the date of such reduction or termination, with the
following quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The facility
fees provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article IV are not met.
(b) Arrangement, Agency, Bid Loan Fees. The Revolving Borrower shall
pay an arrangement fee to the Arranger for the Arranger's own account, and shall
pay an agency fee and Bid Loan fees to the Agent for the Agent's own account, as
required by the letter agreement ("Fee Letter") between the Revolving Borrower
and the Arranger and Agent dated November 20, 1996.
(c) Upfront Fees. The Revolving Borrower shall pay to the Agent on
the Closing Date for the account of each Bank which is a party to the Existing
Agreement an upfront fee equal to 0.050% times (i) its Commitment hereunder less
(ii) its "Commitment" as defined in the Existing Agreement, if, as to such
31
Bank, the amount set forth in clause (i) less the amount set forth in clause
(ii) is greater than zero.
2.13 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Committed Loans and
Swingline Loans bearing interest based on the Base Rate when the Base Rate is
determined by BofA's "reference rate" shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof. The Agent will provide to the Borrowers a
statement of the amount of interest due on each Interest Payment Date and such
other dates that interest is due hereunder and a statement of the amount of fees
due on each date that fees are due hereunder; provided that the failure of the
Agent to provide any such statement shall not limit or otherwise affect either
Borrower's obligations hereunder or under any Note or any other document or
instrument given in connection herewith.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Borrowers the Banks and Designated Bidders in the
absence of manifest error.
(c) If any Reference Bank's Commitment terminates (other than on
termination of all the Commitments), or for any reason whatsoever any Reference
Bank ceases to be a Bank hereunder, that Reference Bank shall thereupon cease to
be a Reference Bank. The Agent shall promptly appoint another Bank (which Bank
shall be approved by the Revolving Borrower) as a replacement Reference Bank for
the terminated Reference Bank. Until the appointment of such replacement
Reference Bank, the Offshore Rate and LIBO Rate shall be determined on the basis
of the rates as notified by the remaining Reference Bank.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the Reference
Banks fails to supply such rates to the Agent upon its request, the rate of
interest shall be determined on the basis of the quotations of the remaining
Reference Bank.
(e) For the purpose of the Interest Act (Canada) only, where
interest is calculated based on a year comprised of 360 days, 365 days, or 366
days, the yearly rate or percentage of interest to which such interest rate is
equivalent, is the rate obtained by multiplying the rate by the actual number of
days in the year and dividing by 360, 365 or 366 as the case may be.
32
2.14 Payments by the Borrowers.
(a) All payments to be made by the Borrowers shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Borrowers shall be made to the Agent for the account
of the Banks and Designated Bidders at the Agent's Payment Office, and shall be
made in dollars and in immediately available funds, no later than 11:00 a.m.
(San Francisco time) on the date specified herein. The Agent will promptly
distribute to each Bank (or Designated Bidder) its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in like funds as
received. Any payment received by the Agent later than 11:00 a.m. (San Francisco
time) shall be deemed to have been received on the following Business Day and
any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the applicable Borrower
prior to the date on which any payment is due to the Banks or Designated Bidders
that such Borrower will not make such payment in full as and when required, the
Agent may assume that such Borrower has made such payment in full to the Agent
on such date in immediately available funds and the Agent may (but shall not be
so required), in reliance upon such assumption, distribute to each Bank or
Designated Bidder on such due date an amount equal to the amount then due such
Bank or Designated Bidder. If and to the extent such Borrower has not made such
payment in full to the Agent, each Bank or Designated Bidder shall repay to the
Agent on demand such amount distributed to such Bank or Designated Bidder,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank or Designated Bidder until the date
repaid.
2.15 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at least
one Business Day prior to the date of such Borrowing, that such Bank will not
make available as and when required hereunder to the Agent for the account of
the applicable Borrower the amount of that Bank's Pro Rata Share of the
Committed Borrowing, in the case of a Committed Borrowing, or the Swingline
Loan, in the case of a Swingline Borrowing, the Agent may assume that each Bank,
in the case of a Committed Borrowing, or the Swingline Bank, in the case of a
Swingline Borrowing, has made such amount available to the Agent in
33
immediately available funds on the Borrowing Date and the Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
applicable Borrower on such date a corresponding amount. If and to the extent
any Bank shall not have made its full amount available to the Agent in
immediately available funds and the Agent in such circumstances has made
available to such Borrower such amount, that Bank shall on the Business Day
following such Borrowing Date make such amount available to the Agent, together
with interest at the Federal Funds Rate for each day during the period from the
Borrowing Date to the date that Bank makes such amount available to the Agent. A
notice of the Agent submitted to any Bank with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Agent shall constitute such Bank's
Loan as of the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the applicable Borrower of such failure to
fund and, upon demand by the Agent, such Borrower shall pay such amount to the
Agent for the Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Committed Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Committed Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Committed Loan to be made by such
other Bank on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Agent of such fact, and (b) purchase from the other
Banks such participations in the Committed Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other Bank shall repay to the purchasing Bank
the purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 10.11) with respect
34
to such participation as fully as if such Bank were the direct creditor of such
Borrower in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Banks following any such purchases or repayments. Any Bank having outstanding
both Committed Loans, Swingline Loans, and Bid Loans at any time a right of
set-off is exercised by such Bank and applying such setoff to the Loans shall
apply the proceeds of such set-off first to such Bank's Committed Loans, until
its Committed Loans are reduced to zero, thereafter to its Swingline Loans,
until reduced to zero, and thereafter to its Bid Loans.
2.17 Quarterly Adjustments.
(a) If the financial reports delivered pursuant to subsections
6.07(a) and 6.07(b) and the certificate delivered pursuant to subsection 6.07(c)
when delivered with respect to any fiscal quarter indicate that the Applicable
Margin or Facility Fee Percentage for any period should have been higher than
the Applicable Margin or Facility Fee Percentage assumed for such period
pursuant to the definitions of such terms, and the interest or fee that would
have been collected hereunder based upon the actual Applicable Margin or
Facility Fee Percentage exceeds the interest or fee actually collected
hereunder, then the applicable Borrower shall pay an amount equal to such excess
to the Agent for the account of the Banks. The Agent will provide a statement to
the applicable Borrower of such amounts due within five Business Days of the
Agent's receipt of such financial reports and certificate, and the applicable
Borrower shall pay such amounts within three Business Days of its receipt of
such statement; provided that the failure of the Agent to provide any such
statement shall not limit or otherwise affect either Borrower's obligations
hereunder or under any Note or any other document or instrument given in
connection herewith.
(b) If (i) the financial reports delivered pursuant to subsections
6.07(a) and 6.07(b) and the certificate delivered pursuant to subsection 6.07(c)
when delivered with respect to any fiscal quarter indicate that the Applicable
Margin or Facility Fee Percentage for any period should have been lower than the
Applicable Margin or Facility Fee Percentage assumed for such period pursuant to
the definitions of such terms, and (ii) the interest or fee actually collected
hereunder exceeds the interest or fee that would have been collected hereunder
based upon the actual Applicable Margin or Facility Fee Percentage, then the
Agent shall credit such excess to interest and fees owing hereunder (including
any interest owing under subsection 2.11(c)) during the calendar quarter when
such financial reports and certificate were received and, if all such excess is
not credited by the end of such calendar quarter, upon request of the Revolving
Borrower, each Bank, severally, if no Default or Event of Default exists, shall
refund to the Agent for distribution to
35
the applicable Borrower the amount of such excess actually received and retained
by such Bank.
2.18 Guaranty. All obligations of the Term Borrower hereunder and under
any Note shall be guaranteed by the Revolving Borrower pursuant to the Guaranty.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Borrowers to each Bank or
Designated Bidder or the Agent under this Agreement and any other document or
instrument given in connection herewith shall be made free and clear of, and
without deduction or withholding for any Taxes. In addition, the Borrowers shall
pay all Other Taxes.
(b) Each Borrower agrees to indemnify and hold harmless each Bank
and Designated Bidder and the Agent for the full amount of Taxes or Other Taxes
imposed on any payments by such Borrower under this Agreement (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by such Bank or Designated Bidder or the Agent and any liability
(including penalties, interest, additions to tax and expenses, unless arising
from the gross negligence or willful misconduct of such Bank or Designated
Bidder or the Agent) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date such Bank or
Designated Bidder or the Agent makes written demand therefor.
(c) If a Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any Bank
or Designated Bidder or the 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 Bank or Designated Bidder or the Agent, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions or withholdings been made;
(ii) such Borrower shall make such deductions and
withholdings;
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
36
(iv) such Borrower shall also pay to each Bank or Designated
Bidder or to the Agent for the account of such Bank or Designated Bidder,
at the time interest is paid, all additional amounts which the respective
Bank or Designated Bidder specifies as necessary to preserve the after-tax
yield such Bank or Designated Bidder would have received if such Taxes or
Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by a Borrower of
Taxes or Other Taxes, such Borrower shall furnish the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(e) If a Borrower is required to pay additional amounts to any Bank
or Designated Bidder or the Agent for such Person's account pursuant to
subsection (c) of this Section, then such Bank or Designated Bidder shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such additional
payment by such Borrower which may thereafter accrue, if such change in the
judgment of such Bank or Designated Bidder is not otherwise disadvantageous to
such Bank or Designated Bidder, as the case may be.
3.02 Illegality.
(a) If any Bank reasonably determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other governmental authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office, or such
Bank's Designated Bidders in the case of LIBOR Bid Loans, to make Offshore Rate
Loans, then, on notice thereof by the Bank to the Borrowers through the Agent,
any obligation of that Bank or Designated Bidder to make Offshore Rate Loans
(including in respect of any LIBOR Bid Loan as to which the Revolving Borrower
has accepted such Bank's or Designated Bidder's Competitive Bid, but as to which
the Borrowing Date has not arrived) shall be suspended until such Bank notifies
the Agent and the Borrowers that the circumstances giving rise to such
determination no longer exist.
(b) If a Bank reasonably determines that it is unlawful for such
Bank or such Bank's Designated Bidder to maintain any Offshore Rate Loan, upon
its receipt of notice of such fact and demand from such Bank (with a copy to the
Agent) (i) the Revolving Borrower shall prepay in full such Offshore Rate Loans
to it of that Bank or its Designated Bidder then outstanding, together with
interest accrued thereon and amounts required under Section 3.04, either on the
last day of the Interest Period thereof, if such Bank or its Designated Bidder
may lawfully continue to maintain such Offshore Rate Loans to
37
such day, or immediately, if such Bank or its Designated Bidder may not lawfully
continue to maintain such Offshore Rate Loans, and (ii) the Offshore Rate Loan
of the Term Borrower to that Bank shall be automatically converted to a Base
Rate Committed Loan, either on the last day of the Interest Period thereof, if
such Bank may lawfully continue to maintain such Offshore Rate Loan to such day,
or immediately, if such Bank may not lawfully continue to maintain such Offshore
Rate Loan, and, in the case of a conversion to a Base Rate Committed Loan prior
to the last day of the Interest Period thereof, the Term Borrower shall pay, on
the date of such automatic conversion, interest accrued thereon to such day and
amounts required under Section 3.04. If the Revolving Borrower is required to so
prepay any Offshore Rate Committed Loan that is a Revolving Loan, then
concurrently with such prepayment, the Revolving Borrower shall borrow from the
affected Bank, in the amount of such repayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore Rate
Committed Loans has been so terminated or suspended, the applicable Borrower may
elect, by giving notice to such Bank through the Agent that all Loans which
would otherwise be made by such Bank as Offshore Rate Committed Loans shall be
instead Base Rate Committed Loans.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the introduction
of or any change (other than any change by way of imposition of or increase in
reserve requirements included in the calculation of the Offshore Rate) in or in
the interpretation of any law or regulation or (ii) the compliance by that Bank
with any guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to such Bank of agreeing to make or making, funding or maintaining
any Offshore Rate Committed Loans, then each Borrower shall be liable for, and
shall from time to time, upon demand (with a copy of such demand to be sent to
the Agent), pay to the Agent for the account of such Bank, additional amounts as
are sufficient to compensate such Bank for such increased costs.
(b) If any Bank or, in the case of Bid Loans, such Bank's Designated
Bidder, shall have determined 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 such Bank or Designated Bidder
(or the Lending Office of either) or any corporation controlling such Bank or
Designated Bidder with any Capital Adequacy Regulation, affects or would affect
the amount of capital required or expected to be maintained by such Bank or
Designated Bidder or any corporation
38
controlling such Bank or Designated Bidder and (taking into consideration such
Bank's or such Designated Bidder's or such corporation's policies with respect
to capital adequacy and such Bank's or such Designated Bidder's or such
corporation's desired return on capital) determines that the amount of such
capital is increased as a consequence of its Commitments, Swingline Commitment
(in the case of the Swingline Bank), loans, credits or obligations under this
Agreement, then, upon demand of such Bank or such Designated Bidder to the
applicable Borrower through the Agent, such Borrower shall pay to such Bank or
Designated Bidder, as applicable, from time to time as specified by such Bank or
such Designated Bidder, additional amounts sufficient to compensate such Bank or
Designated Bidder for such increase. For purposes of this subsection, "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.
3.04 Funding Losses. Each Borrower shall reimburse each Bank and, in the
case of Bid Loans, each Bank's Designated Bidder, and hold each Bank and, in the
case of Bid Loans, each Bank's Designated Bidder, harmless from any loss or
expense which such Bank or Designated Bidder may sustain or incur as a
consequence of:
(a) the failure of such Borrower to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of such Borrower to borrow, continue or convert a
Committed Loan after such Borrower has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of such Borrower to make any prepayment of any
Committed Loan in accordance with any notice delivered under Section 2.09;
(d) the prepayment (including pursuant to Section 2.09) or other
payment (including after acceleration thereof) of any Offshore Rate Loan or
Absolute Rate Bid Loan on a day that is not the last day of the relevant
Interest Period; or
(e) the automatic conversion under Section 2.04 or subsection
3.02(b) of any Offshore Rate Committed Loan to a Base Rate Committed Loan on a
day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained.
39
3.05 Inability to Determine Rates. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate or the LIBO Rate for any requested Interest Period with respect to a
proposed Offshore Rate Loan, or that the Offshore Rate or the LIBO Rate
applicable pursuant to subsection 2.11(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and fairly reflect
the cost to the Banks of funding such Loan, the Agent will promptly so notify
the Borrowers and each Bank. Thereafter, the obligation of the Banks to make or
maintain Offshore Rate Loans, as the case may be, hereunder shall be suspended
until the Agent revokes such notice in writing. Upon receipt of such notice,
each Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If such Borrower does not revoke
such Notice of Borrowing, the Banks shall make, convert or continue the
Committed Loans, as proposed by such Borrower, in the amount specified in the
applicable notice submitted by such Borrower, but such Committed Loans shall be
made, converted or continued as Base Rate Committed Loans instead of Offshore
Rate Committed Loans.
3.06 Survival. The agreements and obligations of the Borrowers in this
Article III shall survive the payment of all other obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The effectiveness of this Agreement, the
obligation of each Bank to make its initial Committed Loan hereunder and to
receive through the Agent the initial Competitive Bid Request, and the
obligation of the Swingline Bank to make its initial Swingline Loan hereunder,
is subject to the condition that the Agent have received on or before the
Closing Date all of the following, in form and substance satisfactory to the
Agent and each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement, the Guaranty and Notes. This Agreement, the
Guaranty and, if requested by any Bank, the Note(s), executed by each party
thereto;
(b) Legal Opinions. (i) An opinion, dated the Closing Date, of
Miller, Nash, Wiener, Hager & Xxxxxxx LLP, counsel to the Revolving Borrower,
substantially in the form of Exhibit D-1, (ii) an opinion, dated the Closing
Date, of Xxxxxxx & DuMoulin, Canadian counsel to the Term Borrower,
substantially in the form of Exhibit D-2, and (iii) an opinion, dated the
Closing Date, of Xxxxxxxx & Xxxxxxxx, special California counsel to the Agent,
substantially in the form of Exhibit D-3;
(c) Resolutions. A copy of a resolution or resolutions passed by the
Board of Directors of each Borrower,
40
certified by the Secretary or an Assistant Secretary of such Borrower as being
in full force and effect on the Closing Date, authorizing the Borrowings and
Guaranty provided for herein and the execution, delivery and performance of this
Agreement and any instrument or agreement required hereunder;
(d) Incumbency. A certificate, signed by the Secretary or an
Assistant Secretary of each Borrower and dated the Closing Date, as to the
incumbency, and containing the specimen signature or signatures, of the person
or persons authorized to execute and deliver this Agreement and any instrument
or agreement required hereunder on behalf of such Borrower;
(e) Payment of Fees. Evidence of payment by the Revolving Borrower
of all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with attorney costs of BofA to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
attorney costs as shall constitute BofA's reasonable estimate of attorney costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts between
the Borrowers and BofA with respect to such costs); including any such costs,
fees and expenses arising under or referenced in Sections 2.12(b) and (c) and
10.04;
(f) Certificates. A certificate signed by a duly authorized officer
of each Borrower, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V
are true and correct on and as of such date, as though made on and as of
such date; and
(ii) no Default or Event of Default exists or would result
from the initial Borrowing to be made by it;
(g) Termination of Existing Agreement. Evidence (i) that all
commitments to extend credit under the Credit Agreement (the "Existing
Agreement") dated as of February 16, 1996 among the Revolving Borrower, the
financial institutions party thereto, and BofA, as agent for such financial
institutions, have been terminated, and (ii) of payment or repayment (or
provision satisfactory to the Agent for payment or repayment thereof out of the
proceeds of a Borrowing hereunder on the Closing Date) by the Revolving Borrower
of (A) all facility fees accrued to the Closing Date under subsection 2.12(a) of
the Existing Agreement and (B) all principal and accrued interest outstanding
thereunder and any amounts payable under Section 3.04 of the Existing Agreement;
it being agreed by each of the Banks which is party to the Existing Agreement
(x) that, upon satisfaction or waiver of all other conditions set forth in this
Section 4.01, its commitment to extend credit under the Existing Agreement shall
be
41
deemed to be terminated, notwithstanding the notice provisions of Section 2.08
of the Existing Agreement, which each such Bank hereby waives, and the condition
set forth in clause (i) of this subsection 4.01(g) shall be deemed to be
satisfied, and (y) promptly after the Closing Date, such Bank will return to the
Agent for return to the Revolving Borrower any promissory note given to it by
the Revolving Borrower under the Existing Agreement; and
(h) Other Documents. Certified copies of all approvals, consents,
exemptions and other actions by, and notices to and filings with, any
governmental authority and any trustee or holder of any indebtedness or
obligation of either Borrower which, in any Bank's opinion, are required in
connection with any transaction contemplated hereby.
4.02 Conditions to All Borrowings. The obligation of each Bank to make any
Committed Loan to be made by it, the obligation of any Bank or Designated Bidder
to make any Bid Loan as to which the Revolving Borrower has accepted the
relevant Competitive Bid, and the obligation of the Swingline Bank to make any
Swingline Loan hereunder (including, in each case, its initial Loan), is subject
to the satisfaction of the following conditions precedent on the relevant
Borrowing Date:
(a) Notice of Borrowing. As to any Committed Loan, the Agent shall
have received (with, in the case of the initial Loan only, a copy for each Bank)
a Notice of Borrowing;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V (exclusive of the last two sentences
of Section 5.13) shall be true and correct on and as of such Borrowing Date with
the same effect as if made on and as of such Borrowing Date;
(c) Financial Statements. The financial statements then most
recently supplied to the Banks under both subsections 6.07(a) and 6.07(b) shall
have been prepared in accordance with the provisions of such subsections as of
the dates and periods therein specified, and since such dates and periods there
shall have been no change in the Revolving Borrower's consolidated financial
condition or results of operations sufficient to impair the Revolving Borrower's
ability to repay the Loans in accordance with the terms hereof, and neither the
Revolving Borrower nor any Subsidiary shall have any contingent obligations,
liabilities for taxes or other outstanding financial obligations which are
material in the aggregate to the Revolving Borrower, except as shall have been
disclosed in such financial statements, or as shall have been otherwise
previously disclosed to the Banks in writing; and
(d) No Existing Default. No Default or Event of Default shall exist
or shall result from such Borrowing.
42
Each Notice of Borrowing and Competitive Bid Request submitted by a Borrower
hereunder shall constitute a representation and warranty by such Borrower
hereunder, as of the date of each such notice or request and as of each
Borrowing Date, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence. Each Borrower is a corporation duly organized
and existing under the laws of the jurisdiction of its incorporation, and is
properly qualified as a foreign corporation and in good standing in every
jurisdiction in which such Borrower is doing business of a nature that requires
such qualification;
5.02 Subsidiaries. Each of its Subsidiaries is duly organized and existing
under the laws of the jurisdiction of its formation, and is properly qualified
as a foreign corporation and in good standing in every jurisdiction in which it
is doing business of a nature that requires such qualification;
5.03 Corporate Authorization. The execution, delivery and performance of
this Agreement and any instrument or agreement required hereunder to be executed
by it, including, in the case of the Revolving Borrower, the Guaranty, are
within such Borrower's powers, have been duly authorized, and are not in
conflict with the terms of any charter, bylaw or other organization papers of
such Borrower, or any instrument or agreement to which such Borrower or any of
its Subsidiaries is a party or by which such Borrower or any of its Subsidiaries
is bound or affected;
5.04 Governmental Authorization. No approval, consent, exemption or other
action by, or notice to or filing with, any governmental authority is necessary
in connection with the execution, delivery or performance by such Borrower of
this Agreement or any instrument or agreement required hereunder to be executed
by it, including, in the case of the Revolving Borrower, the Guaranty, except as
may have been obtained and certified copies of which have been delivered to the
Agent and each Bank;
5.05 No Contravention. There is no law, rule or regulation applicable to
such Borrower or any of its Subsidiaries, nor is there any judgment, decree or
order of any court or governmental authority binding on such Borrower or any its
Subsidiaries, which would be contravened by the execution, delivery, performance
or enforcement of this Agreement or any instrument or agreement required
hereunder, including, in the case of the Revolving Borrower, the Guaranty;
43
5.06 Binding Effect. This Agreement is a legal, valid and binding
agreement of such Borrower, enforceable against such Borrower in accordance with
its terms, and any instrument or agreement required hereunder, including, in the
case of the Revolving Borrower, the Guaranty, when executed and delivered, will
be similarly legal, valid, binding and enforceable;
5.07 Encumbrances. The properties and assets of such Borrower and its
Subsidiaries are free and clear of all security interests, liens, encumbrances
or rights of others, except for security interests, liens and encumbrances
permitted under Section 7.04;
5.08 Compliance with Laws. Such Borrower and each of its Subsidiaries are
in compliance with all applicable federal, state and local laws, ordinances and
regulations relating to hazardous materials or wastes or hazardous or toxic
substances, except where failure to so comply would not have a material adverse
effect on the Revolving Borrower's consolidated financial condition or
operations or materially impair such Borrower's ability to perform its
obligations hereunder or under any instrument or agreement required hereunder,
including, in the case of the Revolving Borrower, the Guaranty;
5.09 Litigation. Except as disclosed in reports filed by the Revolving
Borrower with the Securities and Exchange Commission, copies of which have been
delivered to the Banks, or in Exhibit A to the legal opinion delivered under
subsection 4.01(b)(i), there are no suits, proceedings, claims or disputes
pending or, to the knowledge of such Borrower, threatened against or affecting
such Borrower or any of its Subsidiaries or their respective properties, the
adverse determination of which might reasonably be expected to materially affect
the Revolving Borrower's consolidated financial condition or operations or
materially impair such Borrower's ability to perform its obligations hereunder
or under any instrument or agreement required hereunder, including, in the case
of the Revolving Borrower, the Guaranty;
5.10 No Default. No Default or Event of Default has occurred and is
continuing or would result from the incurring of obligations by either Borrower
under this Agreement or the Notes or, in the case of the Revolving Borrower,
under the Guaranty;
5.11 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 6.01 and
Section 7.05. Neither of the Borrowers nor any of their Subsidiaries is
generally engaged in the business of purchasing or selling "margin stock" as
such term is defined in Regulation G, T, U or X of the FRB or extending credit
for the purpose of purchasing or carrying such margin stock;
44
5.12 Regulated Entities. None of the Borrowers, any Person controlling
either Borrower, or any Subsidiary of either Borrower is an "Investment Company"
within the meaning of the Investment Company Act of 1940. Neither of the
Borrowers is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation limiting its
ability to incur indebtedness;
5.13 Financial Statements. All consolidated financial statements for the
year ended December 31, 1995, and subsequent periods, furnished by the Revolving
Borrower to the Agent and the Banks present fairly, in all material respects,
the consolidated financial position of the Revolving Borrower (unless otherwise
therein noted and any changes in accounting principles and practices are
concurred with by the accountants referred to in subsection 6.07(b)) and,
together with all other information and data furnished by the Revolving Borrower
to the Agent and the Banks, are complete and correct as of the dates and periods
therein specified. Since such dates there has been no change in the Revolving
Borrower's consolidated financial condition or results of operations sufficient
to impair the Borrowers' ability to repay the Loans in accordance with the terms
hereof. Neither of the Borrowers nor any of its Subsidiaries has any contingent
obligations, liabilities for taxes or other outstanding financial obligations
which are material in the aggregate, except as disclosed in such statements,
information and data;
5.14 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and, to the best knowledge of the
Revolving Borrower, nothing has occurred which would cause the loss of such
qualification. The Revolving Borrower and each ERISA Affiliate have made all
required contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan;
(b) There are no pending or, to the best knowledge of the Revolving
Borrower, threatened claims, actions or lawsuits, or action by any governmental
authority, with respect to any Plan which have resulted or could reasonably be
expected to result in a material adverse change in the Revolving Borrower's
consolidated financial condition or results of operations. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could reasonably be expected to result
in a material adverse change in the Revolving Borrower's consolidated financial
condition or results of operations;
45
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) except as disclosed in Schedule 5.14(c), no Plan has any Unfunded
Pension Liability; (iii) neither the Revolving Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Revolving Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) neither the Revolving Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA; and
(d) The Term Borrower (i) does not sponsor or maintain or make, is
not making, and is not obligated to make contributions, and in the case of a
multiple employer plan (as described in Section 4064(a) of ERISA) has not made
contributions at any time during the immediately preceding five plan years to a
pension plan (as defined in Section 3(2) of ERISA) subject to ERISA, (iii) does
not make, is not making and is not obligated to make contributions nor, during
the preceding three calendar years, has it made or been obligated to make
contributions to a "multiemployer plan", within the meaning of Section
4001(a)(3) of ERISA, and (iii) does not sponsor or maintain and does not make,
is not making, and is not obligated to make contributions to an employee benefit
plan (as defined in Section 3(3) of ERISA) subject to ERISA; and
5.15 Swap Obligations. Neither Borrower nor any of their Subsidiaries has
incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, the Swingline
Bank shall have any Swingline Commitment hereunder, or any Loan or other
obligation hereunder shall remain unpaid or unsatisfied, each Borrower will and,
with respect to Sections 6.02, 6.03, 6.04, 6.05, 6.06 and 6.08, will cause each
of its Subsidiaries to, unless the Majority Banks waive compliance in writing:
6.01 Use of Proceeds. Use the proceeds of the Loans for general corporate
purposes not in contravention of any Requirement of Law;
6.02 Preservation of Corporate Existence, Etc. Preserve all rights,
privileges and franchises useful or necessary for ordinary business operations
and keep all properties useful or
46
necessary for ordinary business operations in good working order and condition,
and from time to time make all needful repairs, renewals and replacements
thereto and thereof so that the efficiency of such property shall be fully
maintained and preserved;
6.03 Notices. Promptly give notice in writing to the Agent and each Bank
of:
(a) all litigation when the aggregate amount of claims pending is
$50,000,000 or more and the litigation involves $15,000,000 or more and either
Borrower, or a Subsidiary thereof, is a defendant;
(b) any dispute which may exist between either Borrower or any of
its Subsidiaries and any governmental regulatory body or any threatened action
by any governmental agency to acquire or condemn any of the properties of either
Borrower or any of its Subsidiaries where the amount involved is $30,000,000 or
more;
(c) any strike involving 1,000 or more employees of either Borrower or any
of its Subsidiaries which has continued for thirty (30) days;
(d) any proceeding or order before any court or administrative body
requiring either Borrower or any of its Subsidiaries to comply with any statute
or regulation regarding protection of the environment if such compliance would
require (i) expenditures in the amount of $50,000,000 or more or (ii) if such
violation involves the possibility of the imposition of a fine of $10,000,000 or
more;
(e) the occurrence of any of the following events affecting either
Borrower or any ERISA Affiliate (but in no event more than 10 days after such
event), and deliver to the Agent and each Bank a copy of any notice with respect
to such event that is filed with a governmental authority and any notice
delivered by a governmental authority to either Borrower or any ERISA Affiliate
with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of
any Plan;
(iii) the adoption of, or the commencement of contributions
to, any Plan subject to Section 412 of the Code by either Borrower or any
ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material increase
in contributions or Unfunded Pension Liability; and
47
(f) any Default or Event of Default known to either Borrower.
Each notice under this Section shall be accompanied by a written
statement by the chief financial officer of the Revolving Borrower setting forth
details of the occurrence referred to therein and stating what action the
Revolving Borrower or any affected Subsidiary proposes to take with respect
thereto and at what time. Each notice under subsection 6.03(f) shall describe
with particularity any and all clauses or provisions of this Agreement that have
been breached or violated;
6.04 Payment of Obligations. Promptly pay and discharge all material
obligations, including tax claims, at maturity, except such as may be contested
in good faith or as to which a bona fide dispute may exist;
6.05 Insurance. Maintain such insurance as is usually maintained by others
in the business of the same nature as the business of the Borrowers and each of
their Subsidiaries, as the case may be, or maintain a program of self insurance,
with reserves, in accordance with sound business practices;
6.06 Inspection of Property and Books and Records. Maintain adequate
books, accounts and records in accordance with good accounting standards and
permit representatives of the Majority Banks or the Agent to inspect such books
and records and to visit the properties of the Borrowers and their Subsidiaries;
6.07 Financial Statements. From time to time as hereinafter set forth
promptly prepare, or cause to be prepared, and deliver to the Agent, with
sufficient copies for each Bank, in form and detail satisfactory to the Majority
Banks:
(a) On a consolidated basis summary balance sheets and
statements of income, shareholders' equity and cash flows for the
Revolving Borrower and its Subsidiaries as of the end of each of the first
three quarterly accounting periods in each fiscal year of the Revolving
Borrower; such statements shall be delivered within 45 days from the end
of the period covered and shall be furnished with a Compliance Certificate
signed by a responsible officer of the Revolving Borrower;
(b) (i) On a consolidated basis summary balance sheets and
statements of income, shareholders' equity and cash flows for the
Revolving Borrower and its Subsidiaries as of the end of each fiscal year
of the Revolving Borrower, certified by an independent certified public
accountant or accountants selected by the Revolving Borrower and
acceptable to the Majority Banks; such independent certified public
accountant or accountants shall also certify to the effect that in the
course of making their audit they obtained no knowledge of any existing
unremedied Default or
48
Event of Default by either Borrower under this Agreement, or a statement
disclosing any such defaults if any are found; and (ii) on a consolidated
basis unaudited summary balance sheets and statements of income,
shareholders' equity and cash flows for the Term Borrower and its
Subsidiaries as of the end of each fiscal year of the Term Borrower; such
statements referred to in clauses (i) and (ii) of this Section 6.07(b)
shall be delivered within 90 days from the end of the period covered and
shall be furnished with a Compliance Certificate signed by a responsible
officer of the Revolving Borrower;
(c) Within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Revolving Borrower and within
90 days after the end of each fiscal year of the Revolving Borrower, a
Compliance Certificate, with schedules containing the information and
calculations necessary to substantiate compliance with Section 7.01 and
the calculation of the Interest Coverage Ratio, certified by a responsible
officer of the Revolving Borrower and, in the case of financial statements
as of the end of each fiscal year, reviewed by the Revolving Borrower's
independent certified public accountant or accountants as being true and
correct;
(d) Within 90 days after the end of each fiscal year of the
Revolving Borrower, a list of Subsidiaries;
(e) Within 15 days after filing with the Securities and
Exchange Commission, a copy of all public documents (with the exception of
Forms S-8) filed by the Revolving Borrower with the Securities and
Exchange Commission; and
(f) Such other financial statements, lists of property and
accounts, forecasts, legal opinions or reports as to either Borrower or
any of its Subsidiaries, as any Bank may reasonably request from time to
time; and
6.08 ERISA Compliance. (a) Maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; (c) make all required
contributions to any Plan subject to Section 412 of the Code, and cause each of
its ERISA Affiliates to do each of the foregoing; and (d) not take or permit any
action which would cause the representations in subsection 5.14(d) with respect
to the Term Borrower to cease to be true and correct in all material respects.
49
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, the Swingline
Bank shall have any Swingline Commitment hereunder, or any Loan or other
obligation hereunder shall remain unpaid or unsatisfied, no Borrower will, nor
will it permit any of its Subsidiaries to, unless the Majority Banks waive
compliance in writing:
7.01 Funded Debt to Net Worth. On a consolidated basis, permit the Funded
Debt to Net Worth ratio, measured as of the end of each fiscal quarter, to be in
excess of 1.00 to 1.00;
7.02 Disposition of Property. Sell, lease, sell and lease back, exchange,
transfer or otherwise dispose of:
(a) in a transaction, or a series of transactions, all or
substantially all of the property and assets of the Term Borrower or of the
Revolving Borrower and its Subsidiaries on a consolidated basis;
(b) during any calendar year, any of its fixed or capital assets
with a fair market value exceeding on a cumulative basis for such year for all
such dispositions by the Revolving Borrower and its Subsidiaries ten percent
(10%) of the total consolidated assets of the Revolving Borrower (determined as
of the immediately preceding December 31); or
(c) any of its material assets, to the extent not otherwise
prohibited by this Section, except for full, fair and reasonable consideration;
7.03 Mergers. Merge or consolidate with any other Person or liquidate or
dissolve; provided, however, that:
(a) either Borrower may merge or consolidate with any other Person
if, (i) in the case of a merger or consolidation of the Revolving Borrower, the
Revolving Borrower (or the resulting corporation in a consolidation) will be the
surviving corporation, (ii) in the case of a merger or consolidation of the Term
Borrower, the resulting corporation will, under applicable Canadian law, succeed
by operation of law to all rights and obligations of the Term Borrower, and
(iii), in all events, such Borrower (or such resulting corporation) will not be
in default under any of the terms of this Agreement immediately after the merger
or consolidation; provided that, in the case of a merger or consolidation of the
Term Borrower and the Revolving Borrower, the Revolving Borrower will be the
surviving corporation; and
(b) any Subsidiary may be merged with or dissolved into the
Revolving Borrower or with or into any other Subsidiary; provided that, (i) in
the case of a merger with or dissolution
50
into the Revolving Borrower, the Revolving Borrower will be the surviving
corporation, and (ii) in the case of a merger with or dissolution into the Term
Borrower, the resulting corporation will, under applicable Canadian law, succeed
by operation of law to all rights and obligations of the Term Borrower;
7.04 Encumbrances. Subject any property to any mortgage, deed of trust,
encumbrance, or voluntary lien; provided, however, that this Section 7.04 shall
not be deemed to prohibit the assumption of, or purchase subject to, mortgages
already existing upon property being acquired, or the execution of purchase
money mortgages, or the coming into being of other encumbrances, including in
support of industrial revenue or pollution control bonds which are capitalized
and treated as indebtedness by the Revolving Borrower (provided that the maximum
aggregate outstanding balance of indebtedness secured by such mortgages,
purchase money mortgages, or other encumbrances, including such bonds, shall
never be in excess of $100,000,000), liens for taxes, or loggers' liens, or
mechanics' liens, or other liens arising by law out of the nature of the
operations involved;
7.05 Use of Proceeds. (a) Use any portion of the Loan proceeds, directly
or indirectly, (i) to purchase or carry "margin stock" as such term is defined
in Regulation G, T, U or X of the FRB, (ii) to repay or otherwise refinance
indebtedness of either Borrower or others incurred to purchase or carry such
margin stock, (iii) to extend credit for the purpose of purchasing or carrying
any such margin stock, or (iv) to acquire any security in any transaction that
is subject to Section 13 or 14 of the Securities and Exchange Act of 1934, and
regulations promulgated thereunder; or
(b) directly or indirectly, use any portion of the Loan proceeds (i)
knowingly to purchase Ineligible Securities from the Arranger during any period
in which the Arranger makes a market in such Ineligible Securities, (ii)
knowingly to purchase during the underwriting or placement period Ineligible
Securities being underwritten or privately placed by the Arranger, or (iii) to
make payments of principal or interest on Ineligible Securities underwritten or
privately placed by the Arranger and issued by or for the benefit of either
Borrower or any Affiliate of either Borrower. The Arranger is a registered
broker-dealer and permitted to underwrite and deal in certain Ineligible
Securities; and "Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. ss. 24, Seventh), as amended;
or
7.06 ERISA. (a) engage in one or more prohibited transactions or
violations of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably expected to result in liability of the
Revolving Borrower in an aggregate amount in excess of $50,000,000; or (b)
engage in a transaction that could be subject to Section 4069 or 4212(c) of
51
ERISA, and the Revolving Borrower shall not suffer or permit any of its ERISA
Affiliates to do any of the foregoing.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default. Any of the following shall constitute an "Event of
Default":
(a) Either Borrower shall fail to pay, within five (5) Business Days
after the date when due, any installment of interest or principal or any other
sum due under this Agreement in accordance with the terms hereof;
(b) Any representation or warranty herein or in any agreement,
instrument or certificate executed pursuant hereto or in connection with any
transaction contemplated hereby shall prove to have been false or misleading in
any material respect when made or when deemed to have been made;
(c) A writ, execution or attachment, or any similar process, shall
be levied against all or any substantial portion of the property of either
Borrower or any of its Subsidiaries or any judgment shall be entered against
either Borrower or any of its Subsidiaries in an amount in excess of $15,000,000
and such writ, execution, attachment, process or judgment is not released,
bonded, satisfied, vacated or appealed from within 60 days after its levy or
entry, or the total of all judgments against the Borrowers and their
Subsidiaries outstanding at any time which have not been released, bonded,
satisfied, vacated or appealed from within 60 days from the respective dates of
entry thereof shall exceed $45,000,000 in the aggregate;
(d) Either Borrower or any of its Subsidiaries shall fail to pay its
debts generally as they come due, or shall file any petition or action for
relief under any bankruptcy, reorganization, insolvency or moratorium law, or
any other law or laws for the relief of, or relating to, debtors;
(e) An involuntary petition shall be filed under any bankruptcy
statute against either Borrower or any of its Subsidiaries, or a custodian,
receiver, trustee, assignee for the benefit of creditors (or other similar
official) shall be appointed to take possession, custody, or control of the
properties of either Borrower or any of its Subsidiaries, unless such petition
or appointment is set aside or withdrawn or ceases to be in effect within 45
days from the date of said filing or appointment;
(f) (i) Any default shall occur under any other agreement involving
the borrowing of money or the extension of credit under which either Borrower or
any of its Subsidiaries may be obligated as borrower having an aggregate
principal amount
52
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$25,000,000, if such default consists of the failure to pay any such
indebtedness when due or if such default causes (or upon a lapse of time or
notice or both would cause) the acceleration of any such indebtedness or the
termination of any commitment to lend, or if such default permits (or upon a
lapse of time or notice or both would permit) the holder or holders of such
indebtedness or beneficiary or beneficiaries of such indebtedness (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
accelerate any indebtedness or to terminate any commitment to lend, or (ii)
there occurs under any Swap Contract an Early Termination Date resulting from
(1) any event of default under such Swap Contract as to which either Borrower or
any of its Subsidiaries is the Defaulting Party or (2) any Termination Event as
to which either Borrower or any of its Subsidiaries is an Affected Party, and,
in either event, the Swap Termination Value owed by either Borrower or such
Subsidiary as a result thereof is greater than $25,000,000; for purposes of this
subsection (f), the terms "Early Termination Date", "Defaulting Party",
"Termination Event", and "Affected Party" shall have the meanings assigned to
them in the relevant Swap Contract, it being understood that such definitions
contemplate Swap Contracts documented on International Swaps and Derivatives
Association ("ISDA") standard forms; if such Swap Contract is not documented on
an ISDA standard form, such terms shall be given similar or analogous meanings
as used in such non-ISDA standard agreements;
(g) (i) Any one or more ERISA Events shall occur with respect to one
or more Pension Plans or Multiemployer Plans which has or have resulted or could
reasonably be expected to result in liability of the Revolving Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $50,000,000; (ii) the aggregate amount of Unfunded
Pension Liability among all Pension Plans at any time exceeds $50,000,000; or
(iii) the Revolving Borrower or any ERISA Affiliate shall fail to pay when due,
after the expiration of any applicable grace period, any installment payment or
payments with respect to its withdrawal liability under Section 4201 of ERISA
under any one or more Multiemployer Plans, which payment or payments are in an
aggregate amount in excess of $50,000,000;
(h) The entering of a final order by any court or administrative
agency requiring either Borrower or any of its Subsidiaries to divest itself of
such a substantial part of its assets that the ability of the Borrowers to pay,
when due and payable, either at the fixed maturity thereof or otherwise, the
Loans or any part thereof, or any installment of interest thereon, or the
principal of or interest on any other obligation for borrowed money, will be or
may reasonably be expected to be materially adversely affected, which order is
not subject to appeal or review by any court or as to which order the right to
53
appeal or review has expired, and such order remains in effect for more than 60
days;
(i) Any Person or related group of Persons (other than employees of
the Revolving Borrower or its Subsidiaries and any Plan for the benefit of such
employees) shall beneficially own or shall control by proxy or otherwise, or
shall enter into any agreement to obtain any right to acquire, more than thirty
percent (30%) of the Revolving Borrower's voting securities;
(j) At any time prior to termination or expiration of the Term
Commitment and payment in full of the Term Loans and any other obligations of
the Term Borrower hereunder and under any other document or instrument given in
connection herewith, (i) the Revolving Borrower shall fail to beneficially own,
free and clear of all liens, 100% of the issued and outstanding shares of the
voting and nonvoting stock (including warrants, options, conversion rights, and
other rights of purchase or convert into such stock) of the Term Borrower on a
fully diluted basis, or (ii) there shall occur the creation or imposition of any
lien on any shares of capital stock of the Term Borrower;
(k) At any time prior to termination or expiration of the Term
Commitment and payment in full of the Term Loans and any other obligations of
the Term Borrower hereunder and under any other document or instrument given in
connection herewith and of any amounts due under the Guaranty, the Guaranty is
for any reason partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force and effect, or
the Revolving Borrower or any other Person contests in any manner the validity
or enforceability thereof or denies that it has any further liability or
obligation thereunder; or
(l) Either Borrower shall breach, or default under, any covenant,
term, condition, provision, representation or warranty contained in this
Agreement not specifically referred to in this Article, and, except in the case
of a breach or default under Section 7.03, such breach or default shall continue
for thirty days after the earlier of its discovery by any elected or appointed
officer of such Borrower or written notice thereof to the Borrowers by the Agent
or any Bank.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Committed Loans and
the commitment of the Swingline Bank to make Swingline Loans to be terminated,
whereupon such commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and
54
all other amounts owing or payable hereunder or under any other document or
instrument given in connection herewith to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Borrower; and
(c) exercise on behalf of itself and the Banks and Designated
Bidders all rights and remedies available to it and the Banks and Designated
Bidders under this Agreement, the Notes, the Guaranty or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(d) or (e) of Section 8.01 (in the case of subsection (e) upon the expiration of
the 45-day period mentioned therein), the obligation of each Bank to make Loans
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Agent or any Bank or Designated
Bidder.
8.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other documents or instruments given in connection herewith are cumulative
and are not exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument, document or
agreement now existing or hereafter arising.
8.04 Notice of Default. The Agent shall give notice to the Borrowers under
subsection 8.01(l) promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent". Each Bank and Designated
Bidder hereby irrevocably (subject to Section 9.09) appoints, designates and
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and each other document or instrument given in connection
herewith and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any such document or
instrument, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any such document or instrument, the Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Agent have or be deemed to have any fiduciary relationship with any Bank or
Designated Bidder, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other document or instrument given in connection herewith or otherwise exist
against the Agent. Without limiting the generality of the
55
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other document or instrument given in connection herewith
by or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other document or instrument given in
connection herewith 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 Banks or Designated Bidders for any recital, statement,
representation or warranty made by either Borrower or any Subsidiary or
affiliate of either Borrower, or any officer thereof, contained in this
Agreement or in any other such document or instrument, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agent under or in connection with, this Agreement or any other document
or instrument given in connection herewith, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other such
document or instrument, or for any failure of either Borrower or any other party
to any other such document or instrument to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Bank or
Designated Bidder 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 such document or instrument, or to inspect the properties, books or
records of either Borrower or any of such Borrower's Subsidiaries or affiliates.
9.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to either
Borrower), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in
56
failing or refusing to take any action under this Agreement or any other
document or instrument given in connection herewith unless it shall first
receive such advice or concurrence of the Majority Banks (or, when expressly
required hereby, all of the Banks) as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other document or instrument given in connection herewith in accordance with
a request or consent of the Majority Banks (or, when expressly required hereby,
all of the Banks) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Bank.
9.05 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks or Designated Bidders, unless the
Agent shall have received written notice from a Bank or a Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". The Agent will notify the Banks of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Majority Banks in
accordance with Article VIII; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Banks and Designated Bidders.
9.06 Credit Decision. Each Bank (which for purposes of this Section 9.06
shall include each Designated Bidder) acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of
either Borrower or its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
57
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and their 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
Borrowers hereunder. Each Bank 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 documents or instruments given in connection
herewith, 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 Borrowers. Except for notices, reports and
other documents expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
either Borrower which may come into the possession of any of the Agent-Related
Persons.
9.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrowers and without limiting the obligation of either Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Bank shall be liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including attorney costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other document or instrument given
in connection herewith, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Borrowers. The undertaking in this Section shall survive the payment of
all obligations hereunder and the resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA (or any successor agent) 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
Borrowers and their Subsidiaries and affiliates as though BofA (or such
successor agent) were not the Agent hereunder and
58
without notice to or consent of the Banks or Designated Bidders. The Banks and
the Designated Bidders acknowledge that, pursuant to such activities, BofA (or
such successor agent) or its affiliates may receive information regarding the
Borrowers or their Subsidiaries or affiliates (including information that may be
subject to confidentiality obligations in favor of such Borrower or such
Subsidiaries or affiliates) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans, BofA
(or such successor) shall have the same rights and powers under this Agreement
as any other Bank and may exercise the same as though it were not the Agent, and
the terms "Bank" and "Banks" include BofA (or such successor) in its individual
capacity.
9.09 Successor Agent. The Agent may, and at the request of the Majority
Banks shall, resign as Agent upon 30 days' notice to the Revolving Borrower and
the Banks. If the Agent resigns under this Agreement, the Majority Banks shall
appoint from among the Banks a successor agent for the Banks. If no successor
agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Revolving
Borrower, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. The Borrowers may continue to deal with the
retiring Agent as Agent hereunder until the Revolving Borrower receives notice
of the appointment of such a successor agent. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article IX and Sections
10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement. If no successor agent
has accepted appointment as Agent by the date which is 30 days following a
retiring Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Majority Banks
appoint a successor agent as provided for above. If the Revolving Borrower has
not received notice of the appointment of a successor agent within 30 days of
the retiring Agent's notice of resignation, the Borrowers shall deal directly
with the Banks and Designated Bidders until the Revolving Borrower receives
notice of the appointment of a successor agent as provided above.
Notwithstanding the foregoing, however, BofA may not be removed as the Agent at
the request of the Majority Banks unless BofA shall also simultaneously be
replaced as "Swingline Bank" hereunder pursuant to documentation in form and
substance reasonably satisfactory to BofA.
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9.10 Withholding Tax.
(a) If any Bank (which for purposes of this Section 9.10 shall
include any Designated Bidder) is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS
Forms 1001 and W-8 before the payment of any interest in the first
calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Bank,
two properly completed and executed copies of IRS Form 4224 before the
payment of any interest is due in the first taxable year of such Bank and
in each succeeding taxable year of such Bank during which interest may be
paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption from,
or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Bank
sells, assigns, grants a participation in, or otherwise transfers all or part of
the obligations of the Borrowers hereunder to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner such obligations of the Borrowers to such Bank. To the extent
of such percentage amount, the Agent will treat such Bank's IRS Form 1001 as no
longer valid.
(c) If any Bank claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Agent grants a participation in all or part
of the obligations of the Borrowers hereunder to such Bank, such Bank agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
60
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other governmental authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank (because the
appropriate form was not delivered, was not properly executed, or because such
Bank failed to notify the Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Bank shall indemnify the Agent fully for all amounts paid, directly
or indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including attorney costs). The obligation of the Banks under this subsection
shall survive the payment of all obligations and the resignation or replacement
of the Agent.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other document or instrument given in connection herewith,
and no consent with respect to any departure by either Borrower therefrom, shall
be effective unless the same shall be in writing and signed by the Majority
Banks (or by the Agent at the written request of the Majority Banks) and the
Borrowers and acknowledged by the Agent, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks and the Borrowers and
acknowledged by the Agent, do any of the following:
(a) increase or extend any Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any other
document or instrument given in connection herewith for any payment of
principal, interest, fees or other amounts due to the Banks or the Designated
Bidders (or any of them) hereunder or under any other such document or
instrument;
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(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or (subject to clause (iii) below) any fees or other amounts
payable hereunder or under any other document or instrument given in connection
herewith;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder;
(e) amend this Section, or Section 2.16, or any provision herein
providing for consent or other action by all Banks; or
(f) release the Revolving Borrower from its obligations under the
Guaranty or terminate the Guaranty, except in each case as expressly provided
for therein;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other document or instrument given in connection herewith, (ii)
no amendment, waiver or consent shall, unless in writing and signed by the
Swingline Bank in addition to the Majority Banks or all the Banks, as the case
may be, affect the rights or duties of the Swingline Bank under this Agreement
or any other document or instrument given in connection herewith, and (iii) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
10.02 Notices.
(a) All notices, requests and other communications shall be in
writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by or to either
Borrower by facsimile (i) shall be immediately confirmed by a telephone call to
the recipient at the number specified on Schedule 10.02, and (ii) except in the
case of a Notice of Borrowing, Notice of Conversion/Continuation, or Competitive
Bid Request, in which case the facsimile copy shall be deemed to be the
operative original document, shall be followed promptly by delivery of a hard
copy original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on Schedule 10.02; or, if directed to
either Borrower or the Agent, to such other address as shall be designated by
such party in a written notice to the other parties, and if directed to any
other party, at such other address as shall be designated by such party in a
written notice to the Borrowers and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective upon the next Business
Day after delivery for overnight (next-day) delivery, or when transmitted in
legible form by
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facsimile machine, respectively, or if mailed, upon the third Business Day after
the date deposited into the U.S. mail, or if delivered, upon delivery; except
that notices pursuant to Article II or IX shall not be effective until actually
received by the Agent.
(c) Any agreement of the Agent and the Banks and Designated Bidders
herein to receive certain notices by facsimile is solely for the convenience and
at the request of the Borrowers. The Agent and the Banks and Designated Bidders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by a Borrower to give such notice and the Agent and the Banks
and Designated Bidders shall not have any liability to the Borrowers or other
Person on account of any action taken or not taken by the Agent or the Banks or
Designated Bidders in reliance upon such facsimile notice. The obligation of
each Borrower to repay the Loans made to it shall not be affected in any way or
to any extent by any failure by the Agent and the Banks and Designated Bidders
to receive written confirmation of any facsimile notice or the receipt by the
Agent and the Banks and Designated Bidders of a confirmation which is at
variance with the terms understood by the Agent and the Banks and Designated
Bidders to be contained in the facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Bank or Designated Bidder, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Borrowers shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent) within
five Business Days after demand (subject to subsection 4.01(e)) for all costs
and expenses incurred by BofA (including in its capacity as Agent) 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 and any other documents prepared in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including reasonable attorney costs incurred by BofA
(including in its capacity as Agent) with respect thereto; and
(b) pay or reimburse the Agent and each Bank and Designated Bidder
within five Business Days after demand (subject to subsection 4.01(e)) for all
costs and expenses (including attorney costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights
63
or remedies under this Agreement or any other document or instrument given in
connection herewith 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 or
appellate proceeding).
10.05 Borrower Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Borrowers shall indemnify and hold the
Agent-Related Persons, and each Bank and Designated Bidder and each of their
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each, an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including attorney costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank or Designated Bidder) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising out of
this Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any insolvency
proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Borrowers shall have no obligation hereunder
to any Indemnified Person with respect to (i) Indemnified Liabilities to the
extent resulting from the gross negligence or willful misconduct of such
Indemnified Person (ii) any violation of any banking law or regulation by such
Indemnified Person, (iii) any liability as between or among any Indemnified
Person or their respective shareholders and controlling persons, (iv) any
default hereunder by any Person other than the Borrowers, or (v) any Taxes or
Other Taxes, except to the extent such Taxes or Other Taxes are indemnified
against by other provisions of this Agreement. The agreements in this Section
shall survive payment of all other obligations of the Borrowers.
10.06 Payments Set Aside. To the extent that a Borrower makes a payment to
the Agent or the Banks or Designated Bidders, or the Agent or the Banks or
Designated Bidders exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Agent or such Bank or Designated
Bidder in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any insolvency proceeding or otherwise, then (a) to
the extent of such recovery the obligation or part thereof originally intended
64
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b) each
Bank severally agrees to pay (and to cause any Designated Bidder designated by
it to pay) to the Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no Borrower may assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of the Agent and each Bank.
10.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Revolving Borrower
at all times other than during the existence of an Event of Default and the
Agent, which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (each an "Assignee") all, or any
ratable (in the case of Committed Loans) part of all, of the Loans, the
Commitments and the other rights and obligations of such Bank hereunder, in a
minimum amount of $10,000,000, it being agreed that no Bank shall assign all or
a portion of its Revolving Commitment without assigning a ratable portion of its
Term Loan and no Bank shall assign all or a portion of its Term Loan without
assigning a ratable portion of its Revolving Commitment; provided, however, that
the Borrowers and the Agent may continue to deal solely and directly with such
Bank in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given to
the Borrowers and the Agent by such Bank and the Assignee; (ii) such Bank and
its Assignee shall have delivered to the Borrowers and the Agent an Assignment
and Acceptance substantially in the form of Exhibit E ("Assignment and
Acceptance"); and (iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $3,000. In connection with any assignment by the
Swingline Bank, its Swingline Commitment may be in whole or in part included as
part of the assignment transaction, and the Assignment and Acceptance may be
appropriately modified to include an assignment and delegation of its Swingline
Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank under
this Agreement and the other
65
documents or instruments given in connection herewith, and (ii) the assignor
Bank shall, to the extent that rights and obligations hereunder and under such
documents or instruments have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations
hereunder and under such other documents and instruments; provided, that the
assignor Bank and the Assignee shall each be entitled to the benefits of the
indemnification provisions which would otherwise survive the payment of the
other obligations of the Borrowers.
(c) Within five Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee (and provided that it consents to such assignment if required
under subsection 10.08(a)), each Borrower shall execute and deliver to the
Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and,
if the assignor Bank has retained a portion of its Loans and its Commitment, as
applicable, replacement Notes in the form of Exhibit I and Exhibit K in the
principal amount of the Revolving Commitment and Term Loan, respectively,
retained by the assignor Bank (such Notes to be in exchange for, but not in
payment of, the Notes with respect to Committed Loans held by such Bank, which
shall be returned to the applicable Borrower, along with any Bid Loan Note held
by such Bank if it is not retaining a portion of its Loans and its Revolving
Commitment, concurrently with the delivery by such Borrower of its replacement
Notes). Immediately upon each assignor Bank's or Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce the Commitment of the assigning Bank pro tanto.
(d) Any Bank or Designated Bidder may at any time sell to one or
more commercial banks or other Persons not affiliates of either Borrower (a
"Participant") participating interests in any Loans, the Commitment of that Bank
and the other interests of that Bank or Designated Bidder (the "Originator")
hereunder and under the other documents and instruments given in connection
herewith; provided, however, that (i) the Originator's obligations under this
Agreement shall remain unchanged, (ii) the Originator shall remain solely
responsible for the performance of such obligations, (iii) the Borrowers and the
Agent shall continue to deal solely and directly with the Originator in
connection with the Originator's rights and obligations under this Agreement and
the other documents and instruments given in connection herewith, and (iv) no
Bank shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other document or instrument given in
connection herewith, except to the extent such amendment, consent
66
or waiver would require unanimous consent of the Banks as described in the first
proviso to Section 10.01. In the case of any such participation, the Participant
shall not have any rights under this Agreement, or any of the other documents or
instruments given in connection herewith, and all amounts payable by the
Borrowers hereunder shall be determined as if such Originator had not sold such
participation; except that, if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank or Designated Bidder
(as the case may be) under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank
or Designated Bidder may at any time create a security interest in, or pledge,
all or any portion of its rights under and interest in this Agreement and the
Notes held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
10.09 Designated Bidders. Any Bank from time to time may designate one
Designated Bidder to have a right to offer and make Bid Loans pursuant to
Section 2.06; provided, however, that (i) no such Bank may make more than 3 such
designations, (ii) each such Bank making any such designation shall retain the
right to make Bid Loans, and (iii) the parties to each such designation shall
execute and deliver to the Agent a Designation Agreement. Upon its receipt of an
appropriately completed Designation Agreement executed by a designating Bank and
a designee representing that it is a Designated Bidder, the Agent will accept
such Designation Agreement and give prompt notice thereof to the Revolving
Borrower, whereupon such designation of such Designated Bidder shall become
effective and such designee shall become a party to this Agreement as a
"Designated Bidder."
10.10 Confidentiality. Each Bank and Designated Bidder agrees to take and
to cause its affiliates to take normal and reasonable precautions and exercise
due care to maintain the confidentiality of all information provided to it by
the Borrowers or any of their Subsidiaries, or by the Agent on such Borrower's
or Subsidiary's behalf, under this Agreement or any other document or instrument
given in connection herewith, and neither it nor any of its affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other documents and instruments given in connection herewith
or in connection with other business now or hereafter existing or contemplated
with either Borrower or any of its Subsidiaries, except to the extent such
information (i) was or becomes generally available to the public other than as a
67
result of disclosure by such Bank or Designated Bidder in breach of this Section
10.10, or (ii) was or becomes available on a non-confidential basis from a
source other than a Borrower, provided that such source is not bound by a
confidentiality agreement with a Borrower known to such Bank or Designated
Bidder; provided, however, that any Bank or Designated Bidder may disclose such
information (A) at the request or pursuant to any requirement of any
governmental authority to which such Bank or Designated Bidder is subject or in
connection with an examination of such Bank or Designated Bidder by any such
authority; (B) pursuant to subpoena or other court process; (C) when required to
do so in accordance with the provisions of any applicable Requirement of Law;
(D) to the extent reasonably required in connection with any litigation or
proceeding to which the Agent, any Bank or Designated Bidder or their respective
affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other document or
instrument given in connection herewith; (F) to such Bank's or Designated
Bidder's independent auditors and other professional advisors; (G) to any
Participant or Assignee, actual or potential, provided that such Person agrees
in writing to keep such information confidential to the same extent required of
the Banks hereunder; and (H) as to any Bank or Designated Bidder or its
affiliates, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which a Borrower or any of its
Subsidiaries is party or is deemed party with such Bank or Designated Bidder or
such affiliate.
10.11 Set-off. In addition to any rights and remedies of the Banks and
Designated Bidders provided by law, if an Event of Default exists or the Loans
have been accelerated, each Bank and each Designated Bidder is authorized at any
time and from time to time, without prior notice to either Borrower, any such
notice being waived by each Borrower 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 by, and other indebtedness at any time
owing by, such Bank or Designated Bidder to or for the credit or the account of
such Borrower against any and all obligations of such Borrower owing to such
Bank or Designated Bidder, now or hereafter existing, irrespective of whether or
not the Agent or such Bank or Designated Bidder shall have made demand under
this Agreement or any document or instrument given in connection herewith and
although such obligations may be contingent or unmatured. Each Bank and each
Designated Bidder agrees promptly to notify the applicable Borrower and the
Agent after any such set-off and application made by such Bank or Designated
Bidder; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.12 Notification of Addresses, Lending Offices, Etc. Each Bank and each
Designated Bidder shall notify the Agent in writing of any changes in the
address to which notices to such Bank or Designated Bidder should be directed,
of addresses of any
68
Lending Office, of payment instructions in respect of all payments to be made to
it hereunder and of such other administrative information as the Agent shall
reasonably request.
10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.15 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Borrowers, the Banks, the
Designated Bidders, the Agent-Related Persons, and their permitted successors
and assigns, and no other Person shall be a direct or indirect (other than
Participants, to the extent provided for herein) legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other documents or instruments given in connection
herewith.
10.16 Certain 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) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced; (ii) the term "including" is not limiting and means
"including but not limited to;" and (iii) 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."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited
69
by the terms of this Agreement, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other documents or instruments given in
connection herewith may use several different limitations, tests or measurements
to regulate the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in accordance with their
terms.
(g) References to "attorney costs" in this Agreement or in the Notes
or any other document or instrument given in connection herewith means and
includes all fees and disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and all disbursements of internal
counsel.
(g) This Agreement and the other documents and instruments given in
connection herewith are the result of negotiations among and have been reviewed
by counsel to the Agent, the Borrowers, and the other parties, and are the
products of all parties. Accordingly, they shall not be construed against the
Banks, the Designated Bidders, the Swingline Bank or the Agent merely because of
the Agent's, Banks', Designated Bidders' or Swingline Bank's involvement in
their preparation.
10.17 Governing Law; Submission to Jurisdiction. (a) THIS AGREEMENT AND
THE NOTES AND THE GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND THE BANKS
AND DESIGNATED BIDDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) SUBJECT TO SECTION 10.18, ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT, THE NOTES, THE GUARANTY OR ANY OTHER DOCUMENT OR
INSTRUMENT GIVEN IN CONNECTION HEREWITH MAY BE BROUGHT IN THE COURTS OF THE
STATE OF CALIFORNIA OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT
OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWERS, THE BANKS, THE DESIGNATED BIDDERS AND THE AGENT HEREBY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE BORROWERS, THE BANKS, THE DESIGNATED BIDDERS AND THE AGENT
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH BORROWER
HEREBY WAIVES
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PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.18 Arbitration; Reference Proceeding.
(a) THE BORROWERS, THE BANKS, THE DESIGNATED BIDDERS AND THE AGENT
EACH AGREE THAT ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, THE GUARANTY OR ANY OTHER
DOCUMENT OR INSTRUMENT GIVEN IN CONNECTION HEREWITH, AND ANY CLAIM BASED ON OR
ARISING FROM AN ALLEGED TORT RELATED HERETO OR THERETO, SHALL AT THE REQUEST OF
ANY PARTY BE DETERMINED BY ARBITRATION. THE ARBITRATION SHALL BE CONDUCTED IN
ACCORDANCE WITH THE UNITED STATES ARBITRATION ACT (TITLE 9, U.S. CODE),
NOTWITHSTANDING ANY CHOICE OF LAW PROVISION IN THIS AGREEMENT, AND UNDER THE
COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE
ARBITRATION SHALL BE CONDUCTED WITHIN THE COUNTY OF SAN FRANCISCO, CALIFORNIA.
THE ARBITRATORS SHALL GIVE EFFECT TO STATUTES OF LIMITATION IN DETERMINING ANY
CLAIM. ANY CONTROVERSY CONCERNING WHETHER AN ISSUE IS ARBITRABLE SHALL BE
DETERMINED BY THE ARBITRATORS. JUDGMENT UPON THE ARBITRATION AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN
ACTION FOR JUDICIAL RELIEF OR PURSUIT OF A PROVISIONAL OR ANCILLARY REMEDY SHALL
NOT CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO
SUBMIT THE CONTROVERSY OR CLAIM TO ARBITRATION IF ANY OTHER PARTY CONTESTS SUCH
ACTION FOR JUDICIAL RELIEF.
(b) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (a), NO CONTROVERSY
OR CLAIM SHALL BE SUBMITTED TO ARBITRATION WITHOUT THE CONSENT OF ALL PARTIES
IF, AT THE TIME OF THE PROPOSED SUBMISSION, SUCH CONTROVERSY OR CLAIM ARISES
FROM OR RELATES TO AN OBLIGATION TO THE AGENT OR ANY BANK OR DESIGNATED BIDDER
WHICH IS SECURED BY REAL PROPERTY COLLATERAL LOCATED IN CALIFORNIA. IF ALL
PARTIES DO NOT CONSENT TO SUBMISSION OF SUCH A CONTROVERSY OR CLAIM TO
ARBITRATION, THE CONTROVERSY OR CLAIM SHALL BE DETERMINED AS PROVIDED IN
SUBSECTION (c).
(c) A CONTROVERSY OR CLAIM WHICH IS NOT SUBMITTED TO ARBITRATION AS
PROVIDED AND LIMITED IN SUBSECTIONS (a) AND (b) SHALL, AT THE REQUEST OF ANY
PARTY, BE DETERMINED BY A REFERENCE IN ACCORDANCE WITH CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 638 ET SEQ. IF SUCH AN ELECTION IS MADE, THE PARTIES SHALL
DESIGNATE TO THE COURT A REFEREE OR REFEREES SELECTED UNDER THE AUSPICES OF THE
AAA IN THE SAME MANNER AS ARBITRATORS ARE SELECTED IN AAA-SPONSORED PROCEEDINGS.
THE PRESIDING REFEREE OF THE PANEL, OR THE REFEREE IF THERE IS A SINGLE REFEREE,
SHALL BE AN ACTIVE ATTORNEY OR RETIRED JUDGE. JUDGMENT UPON THE AWARD RENDERED
BY SUCH REFEREE OR REFEREES SHALL BE ENTERED IN THE COURT IN WHICH SUCH
PROCEEDING WAS COMMENCED IN ACCORDANCE WITH CALIFORNIA CODE OF CIVIL PROCEDURE
SECTIONS 644 AND 645.
(d) NO PROVISION OF THIS SECTION SHALL LIMIT THE RIGHT OF ANY PARTY
TO THIS AGREEMENT TO EXERCISE SELF-HELP REMEDIES
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SUCH AS SET-OFF, TO FORECLOSE AGAINST OR SELL ANY REAL OR PERSONAL PROPERTY
COLLATERAL OR SECURITY OR TO OBTAIN PROVISIONAL OR ANCILLARY REMEDIES FROM A
COURT OF COMPETENT JURISDICTION BEFORE, AFTER, OR DURING THE PENDENCY OF ANY
ARBITRATION OR OTHER PROCEEDING. THE EXERCISE OF A REMEDY DOES NOT WAIVE THE
RIGHT OF ANY PARTY TO RESORT TO ARBITRATION OR REFERENCE. AT THE MAJORITY BANKS'
OPTION, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED EITHER
BY EXERCISE OF POWER OF SALE UNDER THE DEED OF TRUST OR MORTGAGE OR BY JUDICIAL
FORECLOSURE.
10.19 Waiver of Jury Trial. IF A CONTROVERSY OR CLAIM IS NOT SUBMITTED TO
ARBITRATION AS PROVIDED AND LIMITED IN SUBSECTIONS (a) AND (b) OF SECTION 10.18
AND IS NOT DETERMINED BY A REFERENCE AS PROVIDED IN SUBSECTION (c) OF SUBSECTION
10.18, THEN THE BORROWERS, THE BANKS, THE DESIGNATED BIDDERS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE NOTES, THE
GUARANTY, AND ANY OTHER DOCUMENT OR INSTRUMENT GIVEN IN CONNECTION HEREWITH, OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY SUCH ACTION, PROCEEDING
OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. THE BORROWERS, THE BANKS, THE DESIGNATED BIDDERS AND
THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT,
THE NOTES, THE GUARANTY OR ANY OTHER DOCUMENT OR INSTRUMENT GIVEN IN CONNECTION
HEREWITH OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
THE NOTES, THE GUARANTY AND ANY OTHER DOCUMENT OR INSTRUMENT GIVEN IN CONNECTION
HEREWITH.
10.20 Judgment. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or under any other document or
instrument given in connection herewith in one currency into another currency,
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given.
The obligation of each Borrower in respect of any such sum due from it to the
Agent or any Bank hereunder or under such other documents or instruments shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the Agent (for its own
account or for the account of any Bank) of any sum adjudged to be so due in the
Judgment Currency, the Agent may in accordance with
72
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Agent or such Bank in the Agreement Currency, each
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Agent or such Bank in such currency, the Agent or
such Bank agrees to return the amount of any excess to the applicable Borrower
(or to any other Person who may be entitled thereto under applicable law).
10.21 Provisions With Respect to Term Borrower. All representations,
warranties, covenants and obligations of the Term Borrower set forth herein and
in all other documents and instruments given in connection herewith shall
terminate and be of no further force and effect after termination or expiration
of the Term Commitment and payment in full of the Term Loans and all other
monetary obligations of the Term Borrower then due and owing hereunder and
thereunder; provided, that the use of the term "Subsidiary" or "Subsidiaries"
herein shall continue to include the Term Borrower.
10.22 Entire Agreement. This Agreement, together with the other documents
and instruments given in connection herewith, including the Notes and the Fee
Letter, embodies the entire agreement and understanding among the Borrowers, the
Banks and the Agent and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
In Witness Whereof, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year first above written.
LOUISIANA-PACIFIC CORPORATION
By: /s/ XXXXXXX X. XXXXX
Title: Executive Vice President
By: /s/ XXXXXXX X. XXXXXX
Title: Vice President, Treasurer &
Controller
LOUISIANA-PACIFIC CANADA LTD.
By: /s/ XXXXXXX X. XXXXXX
Title: Vice President, Treasurer &
Controller
By: /s/ XXXX X. XXXXXX
Title: Assistant Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ XXXXXXX X. XXXXX
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Swingline
Bank and as a Bank
By: /s/ XXXXXXX X. XXXXX
Title: Managing Director
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ABN AMRO BANK N.V.
By: /s/ XXXXXX X. XXXXXX
Title: Xxxxxx X. Xxxxxx, Vice President
By: /s/ XXXXX X. XXXXX
Title: Xxxxx X. Xxxxx, Senior Manager
ROYAL BANK OF CANADA
By: /s/ J. XXXXXX XXXXX
Title: Regional Manager
SOCIETE GENERALE
By: /s/ J. XXXXXX XXXXX
Title: Regional Manager
By:
Title:
SOCIETE GENERALE FINANCE
(IRELAND) LIMITED
By: /s/ J. XXXXXX XXXXX
Title: Regional Manager
By:
Title:
THE BANK OF NOVA SCOTIA
By: /s/ -----------------
Title: Officer
By: /s/ -----------------
Title: Officer
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THE CHASE MANHATTAN BANK
By: /s/ XXXXX XXXXX
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXX X. XXXX
Title: Senior Vice President
UNITED STATES NATIONAL BANK OF
OREGON
By: /s/ XXXXXX X. XXXXX
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ XXXXXXX X.
Title: Senior Vice President
XXXXX FARGO BANK, N.A.
By: /s/----------------
Title: Vice President
By: /s/ XXXXX XXX
Title: Vice President
75
