$185,000,000
THIRD AMENDED AND RESTATED
REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
among
ALEXANDER & XXXXXXX, INC.,
and
FIRST HAWAIIAN BANK
BANK OF AMERICA, N.A.
BANK OF HAWAII
THE BANK OF NEW YORK
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AMERICAN SAVINGS BANK, F. S. B.
and
FIRST HAWAIIAN BANK, as Agent
Dated November 19, 2001
TABLE OF CONTENTS
ARTICLE I - AMOUNT AND TERMS OF THE LOANS AND LETTERS OF CREDIT....1
1.1 Revolving Credit.........................................2
1.2 Revolving Credit Notes...................................3
1.3 Fees.....................................................3
1.4 Termination or Reduction of Commitment...................4
1.5 Term Credit..............................................4
1.6 Term Notes...............................................4
1.7 Interest.................................................5
1.8 Conversions..............................................6
1.9 Lending Office for Eurodollar Loans......................6
1.10 Notice and Manner of Borrowing..........................6
1.11 Voluntary Prepayments...................................7
1.12 Place and Manner of Payment.............................7
1.13 Pro Rata Treatment......................................7
1.14 Borrower's Ability to Obtain Letters of Credit..........8
ARTICLE II - YIELD PROTECTION; CHANGED CIRCUMSTANCES..............12
2.1 Unavailability or Impracticability of Eurodollar Loans..12
2.2 Increased Costs.........................................12
2.3 Reserve Requirements....................................13
2.4 Illegality of Eurodollar Loans..........................13
2.5 Substitution of Banks...................................13
2.6 Indemnity...............................................14
2.7 Payments of Accrued Amounts.............................14
2.8 Banks' Obligation to Mitigate...........................15
2.9 Funding Assumptions.....................................15
ARTICLE III - CONDITIONS PRECEDENT................................15
3.1 All Loans and Letters of Credit.........................15
3.2 Effectiveness of the Agreement..........................15
3.3 Certificate of Agent....................................16
3.4 Loan Under Term Credit..................................16
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE BORROWER.......16
4.1 Due Incorporation, Qualification, Etc...................16
4.2 Capacity................................................16
4.3 Authority and Enforceability............................16
4.4 Compliance with other Instruments.......................17
4.5 Financial Statements....................................17
4.6 Material Adverse Events.................................17
4.7 Litigation, Etc.........................................17
4.8 Title...................................................18
4.9 Patent and Other Rights.................................18
4.10 Adverse Contracts and Orders...........................18
4.11 Taxes..................................................18
4.12 Lawful Use of Proceeds; Compliance with Federal Reserve
Board Regulations......................................19
4.13 Employee Retirement Income Security Act of 1974........19
4.14 Investment Borrower(s) Act of 1940.....................19
4.15 Subsidiaries...........................................19
4.16 Solvency...............................................19
ARTICLE V - REPRESENTATION OF THE BANKS...........................20
ARTICLE VI - AFFIRMATIVE COVENANTS OF THE BORROWER................20
6.1 Financial Records, Statements and Reports and Inspection20
6.2 Insurance...............................................22
6.3 Other Debt..............................................22
6.4 Maintenance of Existence; Conduct of Business...........23
6.5 Expenses................................................23
6.6 Advice of Acquisition...................................23
ARTICLE VII - NEGATIVE COVENANTS OF THE BORROWER..................23
7.1 Financial Covenants.....................................24
7.2 Indebtedness............................................24
7.3 Liens...................................................24
7.4 Sale of Assets..........................................25
7.5 Consolidation, Merger, Etc..............................26
7.6 Investment, Advances and Guarantees.....................26
7.7 Subsidiary Ownership....................................26
7.8 Dividends, Redemptions..................................26
7.9 Release of Restrictions.................................27
ARTICLE VIII - EVENTS OF DEFAULT..................................27
8.1 Events of Default.......................................27
ARTICLE IX - DEFINITIONS..........................................30
9.1 Certain Definitions.....................................30
9.2 Accounting Terms........................................37
ARTICLE X - PARTICIPATIONS; SETOFFS...............................37
ARTICLE XI - RIGHTS AND DUTIES OF THE AGENT AND THE BANKS.........38
11.1 Obligations Several....................................38
11.2 Appointment and Duties of Agent; Agent's Fee...........38
11.3 Discretion and Liability of Agent......................38
11.4 Event of Default.......................................38
11.5 Consultation...........................................39
11.6 Communications to and from Agent.......................39
11.7 Limitations of Agency..................................39
11.8 No Representation or Warranty..........................39
11.9 Bank Credit Decision...................................39
11.10 Indemnity.............................................40
11.11 Resignation...........................................40
11.12 Note Holders..........................................40
11.13 Co-Agent..............................................40
ARTICLE XII - MISCELLANEOUS.......................................40
12.1 Entire Agreement.......................................40
12.2 No Waiver..............................................40
12.3 Survival...............................................40
12.4 Notices................................................40
12.5 Termination............................................41
12.6 Separability of Provisions.............................41
12.7 Successors and Assigns.................................41
12.8 Counterparts...........................................41
12.9 Choice of Law..........................................41
12.10 Amendment and Waiver..................................41
12.11 Indemnification by the Borrower.......................42
Schedules
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I Commitments of Banks
Exhibits
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A Revolving Credit Note
B Term Note
C Certificate of Agent
D Letter of Credit Application
E Subsidiaries
THIRD AMENDED AND RESTATED
REVOLVING CREDIT
AND TERM LOAN AGREEMENT
-----------------------
THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(the "Agreement"), effective as of November 30, 2001 (the "Effective Date"), at
Honolulu, Hawaii, between ALEXANDER & XXXXXXX, INC., a Hawaii corporation (the
"Borrower"), the undersigned Banks (herein called, individually, a "Bank" and,
collectively, the "Banks"), and FIRST HAWAIIAN BANK, as agent for the Banks
(the "Agent") under this Agreement. Certain other capitalized terms used
herein, unless otherwise defined, are defined in Article IX hereof.
PRELIMINARY STATEMENTS
----------------------
A. The Borrower, certain of the Banks and other institutions were
parties to the Revolving Credit and Term Loan Agreement dated as of December 1,
1982. Such Revolving Credit and Term Loan Agreement was amended on nine
occasions by the First through the Ninth Amendments to Revolving Credit and
Term Loan Agreement.
B. The Borrower, with the consent of certain of the Banks and other
institutions, transferred from the Borrower to A & B-Hawaii, Inc., a Hawaii
corporation ("A & B-Hawaii") the bulk of its assets excluding the stock of
Matson, First Hawaiian, Inc., Bancorp Hawaii, Inc., Hawaii Western Steel, and
its aircraft and certain less material assets (the "Transferred Assets"). A &
B-Hawaii was a wholly owned subsidiary of the Borrower.
C. The Borrower and A & B-Hawaii, certain of the Banks and other
institutions were parties to an Amended and Restated Revolving Credit and Term
Loan Agreement dated as of April 1, 1989 pursuant to which borrowings became
the joint and several obligations of the Borrower and A&B-Hawaii. Such Amended
and Restated Revolving Credit and Term Loan Agreement was amended on eight
occasions by those certain First through Eighth Amendments to Amended and
Restated Revolving Credit and Term Loan Agreement.
D. The Borrower and A & B-Hawaii, certain of the Banks and other
institutions were parties to that certain Second Amended and Restated Revolving
Credit and Term Loan Agreement dated as of December 31, 1996. Such Second
Amended and Restated Revolving Credit and Term Loan Agreement was amended on
four occasions by those certain First through Fourth Amendments to Second
Amended and Restated Revolving Credit and Term Loan Agreement. The Second
Amended and Restated Revolving Credit and Term Loan Agreement, as amended, is
hereinafter referred to as the "Existing Agreement."
E. Pursuant to that certain Third Amendment to Second Amended and
Restated Revolving Credit and Term Loan Agreement dated as of November 30,
1999, due to A & B-Hawaii's merger into the Borrower, A & B-Hawaii ceased to
be a borrower under the Existing Agreement.
F. The Borrower, the Banks, and the Agent desire to amend and
restate the Existing Agreement in its entirety all as provided herein.
ARTICLE I - AMOUNT AND TERMS OF THE LOANS AND LETTERS OF CREDIT
---------------------------------------------------------------
Section 1.1 Revolving Credit.
----------------
A. Subject to and upon the terms and conditions herein set forth,
each Bank agrees to lend to the Borrower from time to time, until the
Termination Date, amounts hereunder up to an aggregate principal amount not to
exceed at any one time outstanding its Commitment hereunder. The total amount
of the Revolving Loans and Letters of Credit issued and outstanding shall not
exceed $185,000,000.00 (the "Total Commitment"). Within the limits of each
Bank's Commitment, the Borrower may borrow, prepay pursuant to Section 1.11,
and reborrow under this Section 1.1. Each Borrowing under this Article I (a
"Revolving Loan," and, collectively, the "Revolving Loans") shall be, (i) in
the case of Eurodollar Loans, not less than $500,000 and an integral multiple
of $50,000 from each Bank and, (ii) in the case of Prime Loans, in an aggregate
principal amount from all the Banks of not less than $1,000,000 and an integral
multiple of $100,000, and shall be made simultaneously from the Banks ratably
according to their respective Commitments. Upon the Effective Date, all
Revolving Loans (as defined in the Existing Agreement) outstanding under the
Existing Agreement shall become Revolving Loans hereunder and Borrower shall
thereby have liability for such outstanding amounts.
B. If the Borrower wishes to extend the then applicable Termination
Date for an additional 12-month period and so long as no Event of Default or
Unmatured Event of Default shall have occurred and be continuing the Borrower
shall, no later than six (6) months prior to the Termination Date, give Notice
to the Agent of such request. Upon receipt of such Notice, the Agent shall
transmit the same to the Banks, which shall, not later than three (3) months
prior to the Termination Date, give the Agent Notice as to whether each such
Bank consents to the proposed extension. If all of the Banks consent, the then
applicable Termination Date shall be extended for 12 months. If any Bank does
not consent, the then applicable Termination Date shall remain in full force
and effect. Notwithstanding the foregoing provisions of this Section 1.1B,
if the Termination Date has not been so extended, such additional lender(s)
(the "Replacement Lenders") as agree at the election and invitation of the
Borrower to become parties to this Agreement shall have the option to purchase
from the Bank(s) that did not so consent (the "Departing Bank(s)"), and the
Departing Bank(s) shall be required to sell, prior to the Termination Date,
all or any portion of the Note(s) then held by the Departing Bank(s);
provided however that the Commitment of any Replacement Lender, after such
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purchase, shall not be less than $5,000,000. To the extent the Replacement
Lenders elect to purchase less than 100% of the Note(s) of the Departing
Bank(s), those Banks that would have elected to extend the Termination Date
(the "Continuing Banks") shall have the option to purchase, and the Departing
Bank(s) shall be required to sell, prior to the Termination Date, all or any
of the remaining portion of such Note(s), without recourse to or warranty by
(other than a warranty from each Departing Bank as to the principal amount of
the Loans being purchased from such Departing Bank), or expense to, such
Departing Bank(s).
In the case of any purchase of 100% of such Notes, (i) the Departing
Banks shall no longer have any obligations hereunder (other than those, if any,
as have been accrued before the date of such purchase) and shall no longer
constitute Banks for purposes of this Agreement, and (ii) this Agreement shall
continue in full force and effect, and the Continuing Banks and such Replace-
ment Lenders shall then constitute the Banks hereunder, and (iii) the then
applicable Termination Date shall be extended for 12 months. Each Continuing
Bank's Commitment shall be increased in, and each Replacement Bank's Commitment
shall be, an amount equal to the pro rata share of the Departing Banks'
Commitments represented by the Note(s) or portion(s) thereof purchased by such
Continuing Bank or Replacement Bank. Upon completing any purchase pursuant to
this Section 1.1B and upon executing an appropriate Amendment to this
Agreement, each Replacement Lender shall become a Bank hereunder to the extent
of their respective Commitment. If the Continuing Banks and/or such
Replacement Lenders elect to purchase less than 100% of the Notes then held by
the Departing Banks, then no purchase shall be deemed to have occurred and each
Departing Bank shall make a Term Loan, as of the Termination Date, pursuant to
Sections 1.5 and 1.6, in the amount of their respective Commitments. In the
case of the issuance of such Term Note, this Agreement shall continue in full
force and effect and the Continuing Banks, any Replacement Lenders and any
Departing Banks holding such Term Notes shall then constitute the Banks
hereunder.
The purchase price of Notes held by Departing Banks shall be the
outstanding principal amount thereof as of the date of purchase. Interest
accrued on such Notes and accrued Facility Fees shall remain payable as
provided in this Agreement and upon receipt thereof by the Agent shall be
apportioned among the sellers and purchasers of such Notes pro rata according
to the period each has held such Note or any portion thereof and the
applicable interest rates during such period.
Section 1.2 Revolving Credit Notes. The obligation of the Borrower
----------------------
to repay the amount of its Revolving Loans to each Bank is and shall be
evidenced by a promissory note (a "Revolving Credit Note") in substantially
the form of Exhibit A hereto, executed and delivered by the Borrower pursuant
to this Agreement, with appropriate insertions, which shall mature on the
Termination Date, and shall bear interest on the daily unpaid principal amount
at the rate(s) specified in Section 1.7. Upon the execution and delivery of
a Revolving Credit Note by the Borrower in favor of each of the Banks as stated
herein, any prior Revolving Credit Note under the Existing Agreement shall be
deemed replaced and canceled. All outstanding Revolving Loans on such replaced
and canceled Revolving Credit Notes (all acknowledged to be Eurodollar Loans)
shall be transferred to the corresponding new Revolving Credit Note executed
concurrently herewith and the interest rate on such outstanding Eurodollar
Loans shall remain in effect until the end of the current Eurodollar Interest
Period for each such outstanding Eurodollar Loan. The date and amount of each
Revolving Loan made by such Bank to the Borrower and the date and amount of
each payment of principal and interest on such Revolving Loans shall be
recorded by such Bank at the time of each such Revolving Loan or payment, as
the case may be, on the schedule annexed to the Revolving Credit Note;
provided, however, that failure to make such a notation with respect to any
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Revolving Loan shall not limit or otherwise affect (a) the obligation of the
Borrower hereunder or under such Revolving Credit Note, and (b) recognition
of payments of principal or interest on such Revolving Credit Note by the
Borrower.
Section 1.3 Fees. The Borrower agrees to pay the Agent, for
----
distribution to the Banks ratably according to their respective Commitments,
the following:
A. A "Facility Fee" computed on the basis of the actual number of
days elapsed and a 365-day year, payable from time to time at the rate of one-
eighth of one percent (0.125%) per annum on the full amount of each Bank's
Commitment. The Facility Fee shall be determined at the aforesaid rate from
the Effective Date of the Third Amended and Restated Revolving Credit and Term
Loan Agreement to and including the Termination Date. Except as otherwise
provided in Section 1.4 below, the Facility Fee will be payable quarterly in
arrears not later than the fifteenth day of each January, April, July and
October, for the quarter ending on the last day of the previous month,
commencing October 15, 2001.
B. A "Restructuring Fee" equal to one-twentieth of one percent
(0.05%) of the amount of the Total Commitment. The Restructuring Fee shall be
due and payable upon the Effective Date of this Third Amended and Restated
Revolving Credit and Term Loan Agreement.
C. A "Renewal Fee" on any future extension of the Termination Date
of the Total Commitment equal to three-one hundredth of one percent (0.03%) of
the amount of the Total Commitment. The Renewal Fee shall be due and payable
upon the Effective Date of any future extension of the Termination Date. Such
Renewal Fee shall be imposed solely as part of the consideration for the
extension of the Termination Date, for any minor adjustments of the Interest
Rate and Fees, and for the normal ordinary course of due diligence necessary
for the Agent to obtain the Banks consent therefor. Except for the minor
adjustments to the matters described in the prior sentence, any further or
other modification, amendment or restructuring of the Total Commitment in
connection with any future extension of the Termination Date shall be subject
to such further renewal fees as negotiated between the Agent and the Borrower.
Such Renewal Fee shall not be due for the extension of the Termination Date in
effect under the Existing Agreement, effected pursuant to this Third Amended
and Restated Revolving Credit and Term Loan Agreement.
D. A Letter of Credit Fee due and payable in accordance with and as
specified in Section 1.14 hereinbelow.
Section 1.4 Termination or Reduction of Commitment. Except as
--------------------------------------
specifically provided below, the Borrower shall have the right, upon Notice to
the Agent (which shall give prompt Notice thereof to each of the other Banks),
to reduce permanently in an aggregate principal amount of $5,000,000 or an
integral multiple thereof, or terminate, the Total Commitment without premium
or penalty therefor, provided that (i) any permanent partial reduction of the
Total Commitment shall be accompanied first, by a prepayment of so much of the
-----
Revolving Loans necessary to reduce the aggregate amount of all remaining
outstanding Revolving Loans and the aggregate amount of all outstanding Letters
of Credit to the amount of the Total Commitment as so reduced, and second, if
------
necessary, by a pledge and deposit with the Agent, for the benefit of the Agent
and the Banks, cash or deposit account balances sufficient to fully
collateralize so much of the Letters of Credit outstanding as necessary to
reduce the aggregate amount of all outstanding Letters of Credit not so
collateralized to the amount of the Total Commitment as so reduced, and (ii)
in the case of a termination, the Revolving Loans then outstanding shall be
paid in full, together in each case with all interest accrued thereon and all
Fees due hereunder, and if there are any Letters of Credit outstanding at the
time of such termination, the Borrower shall, no later than thirty (30) days
prior to the date of termination of the Total Commitment, either (a) make
arrangements satisfactory to the Agent for a credit facility to support all
Letters of Credit that may be outstanding as of the date of termination of the
Total Commitment), or (b) pledge and deposit with the Agent, for the benefit
of the Agent and the Banks, cash or deposit account balances sufficient to
fully collateralize all Letters of Credit outstanding as of the date of
termination of the Total Commitment. From the effective date of any such
termination or reduction of the Total Commitment, and provided that the
Borrower shall have paid all amounts due as described herein to effectuate
such termination or reduction, the obligation of the Borrower to pay further
Fees shall correspondingly cease or be proportionately reduced.
Section 1.5 Term Credit. Subject to and upon the terms and
-----------
conditions herein set forth, each Bank agrees to make a term loan (a "Term
Loan," and, collectively, the "Term Loans") to the Borrower on each Bank's
applicable Termination Date in an amount up to an aggregate principal amount
not exceeding the amount of such Bank's Commitment on the applicable
Termination Date. The proceeds of the Term Loan shall be immediately applied
by each Bank, to the extent necessary, to the repayment in full of the
Revolving Credit Note then held by such Bank. On each Bank's Termination
Date, the commitment of each Bank shall terminate and any facility fee then
outstanding shall be paid in full.
Section 1.6 Term Notes. The obligation of the Borrower to repay the
----------
amount of its Term Loan to each Bank shall be evidenced by a promissory note of
the Borrower (a "Term Note," and collectively, the "Term Notes"), in
substantially the form of Exhibit B hereto, with appropriate insertions, dated
the date of such Term Loan, which shall bear interest on the unpaid principal
amount of each installment thereof at the rate provided in Section 1.7, and
shall be payable in four substantially equal quarterly installments, each equal
to one-fourth of the original principal balances of such Term Note, on the last
Business Day of September, December, March and June of any year commencing the
first such day after the date of the Term Note, all as set forth in such Term
Note; provided, however, that the fourth such installment shall be in an amount
sufficient to repay in full the unpaid principal amount thereof.
Section 1.7 Interest.
--------
A. Interest on Each Loan. Each Loan shall bear interest,
---------------------
determined as herein provided, on its unpaid principal amount from the date on
which such Loan is made to the date on which the full amount thereof is repaid.
Interest on each Prime Loan shall be payable quarterly in arrears on the first
Domestic Business Day of each calendar quarter commencing the first such date
after such Prime Loan is made, and at maturity (whether by acceleration or
otherwise), at the applicable Interest Rate computed on the basis of the actual
number of days elapsed and a 365-day or 366-day year. Accrued interest on each
Eurodollar Loan shall be payable in arrears on (i) the last day of the
applicable Eurodollar Interest Period, and (ii) at maturity (whether by
acceleration or otherwise), at the applicable Interest Rate computed on the
basis of the actual number of days elapsed and a 360-day year. Notwithstanding
any other provision of this Agreement, the Borrower agrees to repay the
principal amount of each Eurodollar Loan on the last day of the applicable
Eurodollar Interest Period and upon maturity (whether by acceleration or
otherwise), which repayment may be accomplished with the proceeds of a Prime
Loan or Eurodollar Loan to the extent otherwise permitted hereunder.
B. Extensions of Eurodollar Loans. Not later than three (3)
------------------------------
Eurodollar Business Days prior to the end of each Eurodollar Interest Period,
the Borrower shall, if it elects to extend the related Eurodollar Loans, give
the Agent a Notice specifying the proposed Extension Date and the duration of
the next succeeding Eurodollar Interest Period. The Agent shall advise each
Bank of each above Notice promptly after its receipt thereof.
Any Notice given by the Borrower under this Section 1.7B, shall be
irrevocable. If no such Notice (or Notice of Conversion pursuant to Section
1.8) is so received by the Agent, the relevant Eurodollar Loans of the Borrower
shall automatically be converted into Prime Loans on the last day of the
relevant Eurodollar Interest Period.
C. Interest Rates on Revolving Loans. Except as otherwise provided
---------------------------------
in Section 1.7F:
(i) The Interest Rate in respect of each Prime Loan shall
be the Prime Rate;
(ii) For each Revolving Loan that is a Eurodollar Loan, the
Interest Rate in respect of each Eurodollar Loan during its related Eurodollar
Interest Period shall be the Eurodollar Rate for such Eurodollar Interest
Period plus eleven-twentieths of one percent (0.55%);
D. Interest Rates on Term Loans. Except as otherwise provided in
----------------------------
Section 1.7F:
(i) The Interest Rate in respect of each Term Loan that is a
Prime Loan shall be the Prime Rate;
(ii) The Interest Rate in respect of each Term Loan that is
a Eurodollar Loan during its related Eurodollar Interest Period shall be the
Eurodollar Rate for such Eurodollar Interest Period plus seven-tenths of one
percent (0.70%).
E. Notice of Prime Rate and Eurodollar Rate. The relevant Interest
----------------------------------------
Rates for Prime Loans and Eurodollar Loans shall be determined by the Agent as
herein provided. Notice of Eurodollar Rates shall be given by the Agent to the
Borrower on or before the first day of the relevant Interest Period, and to
each Bank promptly thereafter, and Notice of changes in the Prime Rate shall be
given by the Agent to the Borrower within a reasonable time after such change
is made.
F. Interest Rates After Maturity. If the Borrower defaults in the
-----------------------------
payment when due (whether by acceleration or otherwise) of any principal amount
of any loan, or of any other amount (other than interest) due under this
Agreement, the Borrower shall pay interest on such unpaid amount, payable on
demand, from the date such amount shall have become due to the date of actual
payment, for each day from and including the date such amount is payable to but
excluding the date such amount is paid, at a rate equal to the Prime Rate from
time to time in effect, plus two percent (2%).
Section 1.8 Conversions. Subject to the terms and conditions of
-----------
this Agreement, the Borrower shall have the option to convert at any time any
Loans into Prime Loans or Eurodollar Loans, provided, however, that Eurodollar
-------- -------
Loans may be converted only on the last day of the relevant Eurodollar Interest
Period (except as otherwise required by Section 2.4). The Borrower shall give
a Notice to the Agent of each proposed Conversion, on the day which is, in the
case of a proposed Conversion into Eurodollar Loans, three (3) Eurodollar
Business Days, prior to the proposed Conversion Date. Such Notice shall
specify the proposed Conversion Date (which shall be a Domestic Business Day
in the event of a Conversion into Prime Loans and a Eurodollar Business Day in
the event of a Conversion into Eurodollar Loans). If the Conversion is to be
into Eurodollar Loans, such Notice shall also specify the duration of the
initial Eurodollar Interest Period. Any Notice given by the Borrower under
this Section shall, subject to the provisions of Article II, be irrevocable
and shall constitute a representation by the Borrower of the matters set forth
in Section 0.xX(i) and 0.xX(ii). The Agent shall advise each Bank of a
conversion promptly after receiving such Notice from the Borrower.
Section 1.9 Lending Office for Eurodollar Loans. As to any
-----------------------------------
Eurodollar Loan, each Bank may fulfill its commitment to make any Loan by
causing any of its foreign branches or foreign affiliates to make such Loan
(whether or not such branch or affiliate is named as a lending office on the
signature pages hereof); provided, however, that in such event the obligation
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of the Borrower to repay such Loan shall nevertheless be to such Bank and
shall, for all purposes of this Agreement (including, without limitation, for
purposes of the definition of the term "Majority Banks") be deemed held by it,
to the extent of such Loan, for the account of such branch or affiliate; and
provided, further, that, as of the time of the making of such election, such
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election does not increase the amounts which would have been payable by the
Borrower to such Bank under this Agreement and such Bank's Note in the absence
of such election.
Section 1.10 Notice and Manner of Borrowing. The Borrower shall
------------------------------
give a Notice to the Agent of each proposed Prime Loan Borrowing not less than
four (4) Domestic Business Days prior to the proposed Borrowing Date,
specifying the aggregate principal amount of Prime Loans the Borrower then
desires the Banks to make, and the proposed Borrowing Date thereof (which date
shall be a Domestic Business Day). The Borrower shall give a Notice to the
Agent of each proposed Eurodollar Loan Borrowing not less than four (4)
Eurodollar Business Days prior to the proposed Borrowing Date, specifying the
aggregate principal amount of Eurodollar Loans the Borrower then desires the
Banks to make, the proposed Borrowing Date and Maturity Date (which dates shall
be Eurodollar Business Days) and the duration of the initial Eurodollar
Interest Period with respect thereto. Any Notice given by the Borrower under
this Section 1.10 shall, subject to the provisions of Article II, be
irrevocable. The Agent shall advise each Bank of each such Notice promptly
after the Agent's receipt thereof. Not later than 12:00 noon, San Francisco
time, on each proposed Borrowing Date, each Bank shall provide the Agent at
its office specified in Section 12.4, with immediately available funds in
Dollars covering such Bank's Proportional Share of the Borrowing, and the Agent
shall promptly pay over to the Borrower such funds as it has received from the
Banks pursuant to this section by depositing the same in the general deposit
account of the Borrower maintained with the Agent; provided, however, that if
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such Loan is a refinancing of a Eurodollar Loan having a Maturity Date on such
Borrowing Date, each Bank shall on behalf of the Borrower on such Borrowing
Date repay in full or in part such Eurodollar Loans theretofore outstanding
from the proceeds of the Loans made on such Borrowing Date.
Section 1.11 Voluntary Prepayments. The Borrower shall have the
---------------------
right at any time and from time to time upon at least one full Business Day's
Notice to the Agent (which shall promptly advise the Banks) to prepay, without
premium or penalty, either the Revolving Credit Notes or the Term Notes, as the
Borrower shall specify, in whole or in part, in the amount of $500,000, or an
integral multiple thereof, provided that (i) any such prepayment on the Term
Notes shall be applied, first to the last maturing installment or installments
of said Notes, (ii) the amount of each prepayment on the Revolving Credit Notes
shall again become available for borrowing pursuant to Section 1.1 on the date
of such prepayment, and (iii) any repayment of Eurodollar Loans shall be made
only on the expiration date(s) of the related Eurodollar Interest Period(s).
Section 1.12 Place and Manner of Payment. All amounts payable by
---------------------------
the Borrower to the Banks pursuant to the provisions of this Agreement shall
be paid in Dollars and in immediately available funds. All such amounts
payable by the Borrower to the Banks shall be paid to the Agent at its office
specified in Section 12.4 for the account of the Banks ratably, and the Agent
shall concurrently pay to the Banks such amounts as and when received by it
for the account of the Banks, in the same funds in which such amounts were
received. Any payment received by the Agent after 12:00 noon San Francisco
time shall be deemed to have been received on the next Domestic Business Day
and interest thereon shall accrue until, and be payable on, such next Domestic
Business Day. Any payment made by the Borrower to the Agent pursuant to the
terms of this Agreement or the Notes for the Account of any Bank shall
constitute payment to such Bank. Until the Borrower gives the Agent a Notice
to the contrary, the Borrower hereby authorizes the Agent to debit the
Borrower's deposit account maintained at said office of the Agent for all
payments of principal and interest when due hereunder. The Agent shall
promptly furnish the Borrower a written debit advice after each such debit.
Section 1.13 Pro Rata Treatment. Each Borrowing from, and change in
------------------
the Commitments of, the Banks hereunder, shall be made pro rata in accordance
with their respective Commitments, except as provided in Section 2.5. If any
Notes or any payment required to be made thereon becomes due and payable on a
day other than a Domestic or Eurodollar Business Day, as the case may be, the
due date thereof shall be extended to the next succeeding Business Day and
interest thereon shall be payable at the then applicable rate during such
extension, unless, in the case of interest on a Eurodollar Loan, the next
succeeding Eurodollar Business Day falls in another calendar month, in which
case the applicable Eurodollar Interest Period shall expire on the next
preceding Eurodollar Business Day. Each payment and prepayment on the Term
Notes and on the Revolving Credit Notes shall be made to the Banks pro rata in
accordance with the unpaid principal amount of the Term Notes and Revolving
Credit Notes, respectively, held by each of them at the time of such payment.
The Banks agree among themselves that, if a Bank shall obtain payment of any
obligation held by it through the exercise of a right of setoff, banker's lien
or counterclaim, or from any other source, it shall promptly purchase from the
other Banks participations in the obligations held by the other Banks in such
amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all the Banks shall share the benefit of such payment
pro rata as specified in the preceding sentence, provided, however, that if all
-------- -------
or any portion of such excess payment is thereafter recovered from such
purchasing Bank, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest. The Banks
further agree that for the purpose of this Section 1.13, all exercises of right
of setoff, banker's lien or counterclaim by any Bank shall be deemed to have
been made against and in respect of the Note or Notes held by such Bank and not
against any other obligation of the Borrower to it. The Borrower agrees that
any Bank so purchasing a participation in obligations held by the other Banks
may exercise all rights of setoff, banker's lien or counterclaim with respect
to such participation as fully as if such Bank were a direct holder of said
Note or other Obligations in the amount of such participation.
Section 1.14 Borrower's Ability to Obtain Letters of Credit. The
----------------------------------------------
Banks agree, subject to the terms and conditions contained herein, to allow
standby letters of credit ("Letters of Credit") to be issued by the Agent for
the account of the Borrower. The Agent agrees, in reliance upon the agreement
of the Banks set forth herein, from time to time on any Domestic Business Day
for the period from the Effective Date of this Agreement until the date ten
(10) Domestic Business Days prior to the Termination Date (the "Letters of
Credit Expiration Date"), to issue Letters of Credit for the account of the
Borrower and to honor drafts under the Letters of Credit. The Banks agree to
participate in the Letters of Credit according to each Bank's Proportional
Share, and the responsibility for the payment thereon, upon drawing by a
beneficiary, shall be made by the Banks as specified in sub-part J of this
Section 1.14. The Letters of Credit shall be issued for general corporate
purposes and for such other purposes as the Banks may approve.
A. Conditions to Agent's Obligation to Issue Letters of Credit.
-----------------------------------------------------------
The Agent's obligation to issue Letters of Credit hereunder is subject to all
of the conditions precedent described in Section 3.1 of this Agreement.
Additionally, the Agent shall be under no obligation to issue any Letter of
Credit if: (i) any order, judgment or decree of any governmental authority or
arbitrator shall by its terms purport to enjoin or restrain the Agent from
issuing such Letter of Credit, or (ii) any law applicable to the Agent or any
request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Agent shall prohibit, or
request that the Agent refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the Agent
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Agent is not otherwise compensated hereunder) not in
effect on the Effective Date, or shall impose upon the Agent any unreimbursed
loss, cost or expense which was not applicable on the Effective Date and which
the Agent in good xxxxx xxxxx material to it.
B. Notice of Issuance of Letter of Credit. Notice of each desired
--------------------------------------
Letter of Credit under this Agreement shall be made by the Borrower to the
Agent on the Agent's standard form, a copy of which is attached hereto as
Exhibit D (the "Letter of Credit Application"). The Letter of Credit
Application shall specify, among other matters required by the Agent, (a) the
proposed date of issuance of the Letter of Credit (which date shall be a
Domestic Business Day), (b) the face amount of the Letter of Credit, (c) the
proposed expiration date of the Letter of Credit (which date shall not be later
than the Letters of Credit Expiration Date), (d) the name and address of the
beneficiary, and (e) a summary of the purpose of the Letter of Credit. The
Borrower shall also provide to the Agent the precise terms and conditions,
including a description of any and all documents and/or certificates required
thereunder, which, if strictly complied with by the beneficiary on or before
the expiration date of the Letter of Credit, would require the Agent to make
payment under the Letter of Credit. The Letter of Credit Application shall be
delivered to the Agent no later than four (4) Domestic Business Days prior to
the date the Letter of Credit is desired. The terms, conditions and
obligations under the Letter of Credit Application shall be deemed to
supplement the terms, conditions and obligations of this Agreement, however,
in the event of any conflict or inconsistency between this Agreement and the
Letter of Credit Application, this Agreement shall control.
The Agent shall notify each Bank of the issuance of any Letter of
Credit, and thereafter, the amendment, cancellation or extension of all such
issued Letters of Credit.
C. Examination of Letter of Credit. The Borrower shall, within
-------------------------------
three (3) Domestic Business Days, examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim
of noncompliance with the Borrower's instructions or other irregularity, the
Borrower will notify the Agent prior to the end of the third Business Day after
receipt of such Letter of Credit. The Borrower shall be conclusively deemed to
have waived any such claim against the Agent and its correspondents unless such
notice is given as aforesaid.
D. Applicability of ISP98 and UCP. Unless otherwise expressly
------------------------------
agreed by the Agent and the Borrower when a Letter of Credit is issued (i) the
rules of the "International Standby Practices 1998" published by the Institute
of International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
(the "ICC") at the time of issuance (including the ICC decision published by
the Commission on Banking Technique and Practice on April 6, 1998 regarding the
European single currency (euro)) shall apply to each commercial Letter of
Credit.
E. Limitation on Amounts. Each Letter of Credit shall be for an
---------------------
amount which is at least FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). The
expiry date of any Letter of Credit shall be no later than the Letters of
Credit Expiration Date. The aggregate amount of all Letters of Credit issued
and outstanding at any one time may not exceed the amount available under the
Total Commitment after subtracting all outstanding Revolving Loans and in no
event shall it exceed FIFTY MILLION AND NO/100 DOLLARS ($50,000,000.00). The
amount of the Total Commitment available to the Borrower for Revolving Loans
shall be reduced by the aggregate amount of all Letters of Credit issued and
outstanding at any one time.
F. Drawing of Letter of Credit; Interest; Obligations Absolute.
-----------------------------------------------------------
Upon the drawing of any Letter of Credit and the payment by each Bank of the
amount drawn thereunder in accordance with each Bank's Proportional Share, the
amount so drawn shall become and be deemed a Revolving Loan, the principal
amounts due to each Bank being deemed part of the principal amount due under
each Bank's Revolving Credit Note. For interest purposes, the amount due under
such drawn Letter of Credit shall be considered a Prime Loan subject to
Conversion by the Borrower under Section 1.8 herein. Upon the occurrence of an
Event of Default hereunder, the full amount of any outstanding Letter of Credit
shall become and be deemed a Revolving Loan, the principal amount of which
shall be deemed proportionally a part of the principal balance due under each
Banks' Revolving Credit Note. Interest shall not accrue on any Letters of
Credit until the same has been drawn by the beneficiary and paid by the Agent,
or if an Event of Default occurs. The obligation of the Borrower to repay each
drawing under any Letter of Credit, whether or not any such drawing under a
Letter of Credit becomes a Revolving Loan, shall be, absent the gross
negligence or wilful misconduct of the Agent or the failure of the Agent to act
in good faith as described in the first sentence of Section 1.14 L with respect
to the honoring of any drawing under any Letter of Credit, absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement and the Letter of Credit Application.
G. Evergreen Letters of Credit. If the Borrower so requests in any
---------------------------
Notice for issuance of a Letter of Credit, the Agent may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Evergreen Letter of Credit"); provided, however,
--------
that (1) no such Evergreen Letter of Credit shall have any provision extending
its expiration date beyond the Letters of Credit Expiration Date; and (2) that
any Evergreen Letter of Credit must permit the Agent to prevent any such
automatic renewal at least once in each twelve-month period (commencing with
the date of issuance of such Evergreen Letter of Credit) by giving prior notice
to the Borrower and the beneficiary thereof not later than a date (the
"Nonrenewal Notice Date") in each such twelve-month period to be agreed upon at
the time such Evergreen Letter of Credit is issued. Once an Evergreen Letter
of Credit has been issued, the Banks shall be deemed to have authorized (but
may not require) the Agent to permit the renewal of an Evergreen Letter of
Credit beyond its expiration date at any time to a date not later than the
Letters of Credit Expiration Date; provided, however, that the Agent shall not
-------- -------
permit such automatic renewal if (A) the Agent would have no obligation at such
time to issue such Evergreen Letter of Credit in its renewed form, or any other
Letter of Credit, under the terms hereof, or (B) it has received notice (which
may be by telephone, telecopier, facsimile or in writing) on or before the
Business Day immediately preceding the Nonrenewal Notice Date that the Majority
Banks have elected not to permit such renewal. Notwithstanding anything to the
contrary contained herein, nothing in this Section 1.14F shall be construed to
impose any obligation on the Agent to permit the renewal of any Evergreen
Letter of Credit at any time.
H. Letter of Credit Fee. The Borrower agrees to pay the Agent, for
--------------------
distribution to the Banks pro rata according to their respective Commitments,
for each Letter of Credit issued and outstanding, a "Letter of Credit Fee"
which shall be equal to a percentage of the amount of the Letter of Credit
issued, such percentage to be agreed upon by the Banks for each Letter of
Credit at the time it is issued. No formal approval by the Banks is necessary
if the Letter of Credit Fee is equal to or greater than 55 basis points (0.55%)
of the amount of the Letter of Credit issued. If, however, the proposed Letter
of Credit Fee is proposed to be less than 55 basis points (0.55%) of the amount
of the proposed Letter of Credit, unanimous agreement of all Banks is necessary
to set such Letter of Credit Fee at such rate. If the Banks cannot unanimously
agree as to such rate, the Letter of Credit Fee shall be 55 basis points
(0.55%) of the amount of the proposed Letter of Credit. The Letter of Credit
Fee shall be aggregated quarterly, such payment to be made quarterly in
advance, based on a year of 360 days and the actual days elapsed.
I. Letter of Credit Issuance Fee. The Borrower also agrees, at the
-----------------------------
time of issuance of any Letter of Credit, to pay the Agent, for its own account
and not for distribution to Banks, a "Letter of Credit Issuance Fee" equal to
$500.00.
X. Xxxxx' Obligation. The Banks' obligation to pay their
-----------------
proportionate share of any drawn Letter of Credit issued by the Agent in
accordance with the terms of this Agreement shall be absolute, unconditional
and irrevocable regardless of whether there has been an Event of Default. The
Agent shall advise each Bank of the impending drawing of any outstanding Letter
of Credit, and the corresponding date of payment of such Letter of Credit (such
payment date shall be deemed a Borrowing Date as defined herein), promptly
after the Agent's receipt thereof. Not later than 12:00 noon, Hawaii Standard
Time, on such Borrowing Date, each Bank shall provide the Agent at its office
specified in Section 12.4, with immediately available funds in Dollars covering
such Bank's Proportional Share of the drawn Letter of Credit, and the Agent
shall promptly pay over to the beneficiary of such Letter of Credit all such
funds necessary to pay the amount of the drawn Letter of Credit as such
beneficiary directs.
In the event that a Bank fails to make available funds in Dollars
covering such Bank's Proportional Share of the drawn Letter of Credit on the
Borrowing Date, such Bank shall forfeit any interest accruing on its
Proportional Share to the Agent and such Bank shall on the next Business Day
following the Borrowing Date make such amount available to the Agent, together
with interest at the federal funds rate for and determined as of each day
during such period that the Agent is without such funds from such Bank.
K. Indemnification. The Borrower hereby agrees to protect,
---------------
indemnify, pay and save harmless the Agent and the Banks from and against any
and all third party claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable fees, expenses and disbursements of
counsel) which the Agent or Banks may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by the Agent,
other than as a result of (a) the gross negligence or willful misconduct of the
Agent or the failure of the Agent to act in good faith as described in the
first sentence of Section 1.14 L with respect to the honoring of any drawing
under any Letter of Credit or (b) the wrongful dishonor (so long as such
wrongful dishonor is not a result of an occurrence under the following clause
(ii)) by the Agent of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of the Agent to honor a drawing under
any such Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Governmental
Acts").
L. Responsibility of Agent With Respect to Payment Under a Letter
--------------------------------------------------------------
of Credit; Nature of Agent's Duties. In determining whether to honor any
-----------------------------------
drawing under any Letter of Credit by the beneficiary thereof, the Agent shall
be responsible only to use reasonable care (the degree of care reasonably
expected of similar issuers of letters of credit) to determine that the terms
and conditions of such drawing, including the delivery of such documents,
instruments and certificates required therefor, have been complied with by the
beneficiary and the Agent shall not have any liability for or responsibility
for the correctness, validity, genuineness, sufficiency, or falsification of
any such documents, instruments or certificates or for the failure of any
person to comply with the terms any Letter of Credit or for any other error,
neglect, or omission if done in good faith and absent the gross negligence or
wilful misconduct of the Agent, and any action taken in good faith by Agent and
absent the gross negligence or wilful misconduct of the Agent shall be binding
on the Borrower. As between the Borrower and the Agent, the Borrower assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by the Agent, by the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, and absent the gross
negligence or wilful misconduct of the Agent or the failure of the Agent to act
in good faith as described in the first sentence of Section 1.14 L with respect
to the honoring of any drawing under any Letter of Credit, the Agent shall not
be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in connection with the
application for and issuance of any such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of such Letter of Credit to strictly comply with any
conditions required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay
in the transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including limitation any
Governmental Acts, and none of the above shall affect or prevent the vesting
of, any of the Agent's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this Subsection 1.14L, any
action taken by the Agent under or in connection with a Letter of Credit by it
or any documents and certificates delivered thereunder, if taken or omitted in
good faith and without gross negligence, shall not put the Agent under any
resulting liability to the Borrower.
Notwithstanding anything to the contrary contained in this Section
1.14L, the Borrower shall retain any and all rights it may have against the
Agent for any liability arising solely out of (a) the gross negligence or
willful misconduct of the Agent or the failure of the Agent to act in good
faith as described in the first sentence of Section 1.14 L with respect to the
honoring of any drawing under any Letter of Credit or (b) the wrongful dishonor
by the Agent of a proper demand for payment made under any Letter of Credit
issued by it except where such dishonor results from Governmental Acts.
ARTICLE II - YIELD PROTECTION; CHANGED CIRCUMSTANCES
----------------------------------------------------
Section 2.1 Unavailability or Impracticability of Eurodollar Loans.
------------------------------------------------------
If (i) with respect to any Eurodollar Interest Period, the Agent reasonably
determines that Dollar deposits in the principal amount requested in the
relevant Notice of Borrowing for periods equal to the relevant Eurodollar
Interest Period are not available in the London Interbank Eurodollar Market, or
(ii) the Majority Banks in any Borrowing reasonably determine, and give Notice
to the Agent, that the making of Eurodollar Loans in such Borrowing has become
impracticable because the related Eurodollar Rate does not adequately and
accurately reflect the cost of maintaining or funding such Eurodollar Loans,
then the Agent shall forthwith give Notice of such determination to the
Borrower and the Banks in such Borrowing. Thereafter, and so long as either
conditions specified in clause (i) or (ii) of this Section 2.1 continues, no
Bank shall have any obligation to make or extend Eurodollar Loans (or to
convert Loans into Eurodollar Loans) in such Borrowing (and any outstanding
Notice requesting any such Borrowing, Extension or conversion pertaining to
such Borrowing shall be deemed to be revoked), and the Borrower shall convert
any Eurodollar Loans in such Borrowing into Prime Loans in accordance with
Section 1.8, or prepay such Eurodollar Loans upon four (4) Domestic Business
Days' prior Notice to the Agent, which prepayment shall be made without premium
or penalty and on the expiration date of the related existing Eurodollar
Interest Period.
Section 2.2 Increased Costs. If any Bank reasonably determines
---------------
that, because of any Regulatory Requirement (including, but not limited to,
those affecting Taxes or reserve or special deposit or similar requirements),
or because of actions permitted by Section 1.9, the cost to such Bank of making
or maintaining any Loans has increased (which increased cost shall be deemed to
include any decrease in any amount receivable by such Bank in connection with
any Loans), then such Bank shall forthwith give Notice of such determination to
the Borrower and the Agent. Thereafter, the Borrower shall pay to each such
Affected Bank, fifteen (15) Domestic Business Days after written demand to the
Borrower with a copy to the Agent (which demand shall show the basis for the
calculation of the increased cost), such additional amounts as shall be
required to compensate such Affected Bank for such increased costs. If as a
result the Borrower elects to prepay or convert Loan(s) pursuant to Section
2.5, the Borrower shall pay fifteen (15) Domestic Business Days after written
demand the increased costs of the Affected Bank(s) accruing for the period
prior to such date of prepayment or Conversion.
If after the Effective Date the implementation of or any change in
any Regulatory Requirement imposes, modifies or deems applicable any capital
adequacy or similar requirement (including without limitation a request or
requirement which affects the manner in which any Bank allocates capital
resources to its commitments, including its obligations hereunder) and as a
result thereof, in the sole opinion of such Bank, the rate of return on such
Bank's capital as a consequence of its obligations hereunder is reduced to a
level below that which such Bank could have achieved but for such
circumstances, then and in each such case upon demand from time to time the
Borrower shall pay to such Bank such additional amount or amounts as shall
compensate such Bank for such reduction in rate of return; provided, however,
-------- -------
that such amounts shall be computed solely on a prospective basis from the date
such Bank notifies the Borrower of such circumstances. A certificate of such
Affected Bank as to any such additional amount or amounts, in the absence of
manifest error, shall be final and conclusive. In determining such amount,
the Affected Bank may use any reasonable averaging and attribution methods.
Section 2.3 Reserve Requirements. In addition to all other amounts
--------------------
payable by the Borrower hereunder, the Borrower shall pay to each Bank that is
subject to a Eurodollar Reserve Requirement an amount equal to the difference
between (i) the interest payable to such Bank on each Eurodollar Loan at the
applicable Eurodollar Rate and (ii) the interest that would have been so
payable if such Eurodollar Rate had been multiplied by the following fraction:
1
___________________________________
100% - Eurodollar Reserve Requirement
Each Bank which has such a reserve requirement imposed on it shall forthwith
give Notice of such requirement to the Borrower and the Agent. Within fifteen
(15) Domestic Business Days after the date of such Notice, the Borrower shall
pay to each such Bank such additional amount as shall be required to compensate
such Bank for such reserve requirement; provided, however, to the extent such
-------- -------
additional amounts relate to a Eurodollar Loan that has not yet matured, the
Borrower shall pay such amount upon the maturity of that Eurodollar Loan
concurrently with the payment of interest thereon; and provided further, that
-------- -------
the Borrower shall not be liable to a Bank for amounts under this Section 2.3
that are allocable to any time more than sixty (60) days before such Bank gives
the Notice of imposition of a reserve requirement described above.
Section 2.4 Illegality of Eurodollar Loans. If any Bank reasonably
------------------------------
determines that it has become unlawful, because of any Regulatory Requirement,
for such Bank (i) to make Eurodollar Loans hereunder, or (ii) to maintain
Eurodollar Loans hereunder, then such Bank shall give Notice of such
determination to the Borrower and the Agent. Thereupon, in the case of clause
(i), the obligation of such Affected Bank to make or extend Eurodollar Loans or
to convert Loans into Eurodollar Loans shall be suspended until such time as it
is once again lawful for such Affected Bank to make Eurodollar Loans, and, in
the case of clause (ii), the Borrower shall prepay each Eurodollar Loan of such
Affected Bank either (x) on the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Bank may lawfully continue to fund
and maintain such Eurodollar Loan to such day or (y) immediately if such Bank
may not lawfully continue to fund and maintain such Eurodollar Loan to such
day. Any such prepayment of an Affected Bank's Eurodollar Loan(s) or any such
conversion of all Borrowings of which the Affected Bank's Eurodollar Loans are
a part shall be subject to the payment of the indemnity referred to in Section
2.6.
Section 2.5 Substitution of Banks. If any Affected Bank has given
---------------------
Notice pursuant to Section 2.2 or 2.4, the Borrower shall, at its election,
take one of the following actions: (i) revoke (subject to payment of any
amounts required under Section 2.6) any then pending Notice of proposed
Borrowing or Conversion and give another Notice for a Borrowing or a Conversion
to be made up of, and/or prepay or convert each existing Borrowing made up of
Loans subject to such Notice into a Borrowing consisting of, Loans not subject
to such increased costs or not claimed to be illegal; (ii) if any Affected Bank
has given Notice of increased costs, agree to pay such increased costs, on
terms and conditions mutually satisfactory to the Borrower and such Affected
Bank; (iii) instruct the Affected Bank to make such Affected Bank's Loan as a
Prime Loan, which shall be converted to a Eurodollar Loan at such time as such
Notice is no longer applicable; (iv) request the non-Affected Banks to take
over all (but not part) of such Affected Bank's Loans; provided, however, that
-------- -------
the non-Affected Banks may elect to take over fewer than all of the Affected
Bank's Loans; or (v) if and only if the non-Affected Banks have elected to take
over less than all of the Affected Bank's Loans, designate a Replacement Lender
or Lenders to take over all of the Loans of the Affected Bank not being taken
over by the non-Affected Banks subject, in the case of (v), to the requirement
that no Replacement Lender may have a Commitment of less than $5,000,000.
If one or more non-Affected Banks shall so agree in writing, such
non-Affected Banks (pro rata according to their outstanding Loans) shall make
Loans to the Borrower in an aggregate amount equal to the portion of the
outstanding Loans of the Affected Bank being replaced pursuant to this sentence
(and in the same admixture of Prime Loans and Eurodollar Loans as all the
outstanding Loans of the Affected Bank) on a date mutually acceptable to such
non-Affected Banks and the Borrower. The proceeds of such Loans shall be used
to repay the outstanding principal amount of the Loans of the Affected Bank
being taken over the non-Affected Banks. If the Borrower designates a
Replacement Lender or Lenders in respect of all or a portion of the outstanding
Loans of the Affected Bank, such Replacement Lenders shall purchase such Loans
or portion, without recourse to or warranty by (other than a warranty from the
Affected Bank as to the principal amount of the Loans being purchased), or
expense to, such Affected Bank, and such Affected Bank shall sell such Loans,
for a purchase price equal to the outstanding principal amount of the Loans of
such Affected Bank being purchased. Thereafter, the Commitment of such
Affected Bank shall be allocated pro rata among such non-Affected Banks and/or
such Replacement Lender(s). Any purchase of Eurodollar Loans by non-Affected
Banks or Replacement Lenders shall take place only on the last day of the
relevant Eurodollar Interest Period, or as otherwise required by Section 2.4.
Upon accomplishment of the foregoing, the Affected Bank shall no
longer have any obligations hereunder (except for obligations, if any, accrued
before and not discharged as of such accomplishment) and shall no longer
constitute a Bank for the purposes of this Agreement.
Upon completing any purchase pursuant to this Section 2.5 and upon
executing a counterpart of this Agreement, each Replacement Lender shall become
a Bank hereunder. The Borrower shall provide replacement Notes to each
Replacement Lender and to any non-Affected Bank making Loans pursuant to this
Section 2.5 to reflect the identity of, and/or the increased or new,
respectively, Commitment of, each such non-Affected Bank or Replacement Lender,
respectively.
Section 2.6 Indemnity. The Borrower shall compensate each Bank,
---------
fifteen (15) Domestic Business Days after Notice by such Bank (which Notice
shall set forth the basis for requesting such amounts), for all reasonable
losses and expenses in respect of any interest paid or premium or penalty
incurred by such Bank (or its lending ,branch or affiliate) to lenders or
otherwise in respect of the funds borrowed by or deposited with it to make or
maintain its Eurodollar Loans which such Bank (or its lending branch or
affiliate) may sustain, to the extent not otherwise compensated for under this
Agreement (under Section 2.2 or otherwise) and not mitigated by the re-
employment of such funds: (i) if for any reason (other than a default by such
Bank or the operation of Section 2.1) a Borrowing, Conversion or Extension of
any Loan does not occur on a date specified therefor in a Notice of Borrowing,
Conversion or Extension given by the Borrower, including, without limitation,
because a Notice is revoked pursuant to Section 2.5(i), or (ii) if a Eurodollar
Loan is repaid other than on the expiration date of the related Eurodollar
Interest Period. A statement as to such loss or expense (including
calculations, in reasonable detail, showing how such Bank computed such loss or
expense) shall be promptly submitted by such Bank to the Borrower (with a copy
to the Agent).
Section 2.7 Payments of Accrued Amounts. On the date of any Loan
---------------------------
prepayment made in accordance with this Article II, the Borrower shall also
pay, to the Bank being prepaid, interest accrued on the amount of such Loan
being prepaid. The Borrower shall also make timely payment of all other
amounts owing to such Bank hereunder with respect to the amount of such Loan
being prepaid.
Section 2.8 Banks' Obligation to Mitigate. Each Bank agrees that as
-----------------------------
promptly as practicable after it becomes aware of the occurrence of an event
that would entitle it to give Notice pursuant to Section 2.2 or 2.4, it will,
prior to the date of any prepayment or Conversion of an affected Loan, use
reasonable efforts to make, fund or maintain such Loan through another lending
office of such Bank if as a result thereof the increased costs would be avoided
or materially reduced or the illegality would thereby cease to exist and if, as
determined by such Bank, the making, financing or maintenance of such Loan
through such other lending office does not otherwise materially adversely
affect such Loan or Bank. The Borrower hereby agrees to pay all reasonable
expenses incurred by any Bank in utilizing another lending office of such Bank
pursuant to this Section 2.8.
Section 2.9 Funding Assumptions. Solely for purposes of calculating
-------------------
amounts payable by the Borrower to the Banks under this Article II, (i) each
Eurodollar Loan made by a Bank (and each related reserve, special deposit
similar requirement) shall be conclusively deemed to be funded at the Libor
Rate used in determining the relevant Eurodollar Rate by such Bank (or its
branch or affiliate) by a matching deposit in the London Interbank Eurodollar
Market, whether or not such Loan is in fact so funded.
ARTICLE III - CONDITIONS PRECEDENT
----------------------------------
Section 3.1 All Loans and Letters of Credit. The obligations of each
-------------------------------
of the Banks to make any Loan hereunder, and of the Agent to issue any Letter
of Credit hereunder, are subject to the following conditions precedent:
A. Receipt by the Agent from the Borrower of the Notice of
Borrowing specified in Section 1.10 or a Notice for Letter of Credit as
specified in Section 1.14. Each such Notice received by the Agent hereunder
shall be deemed to be a representation and warranty by the Borrower as of the
Borrowing Date in such Notice that, after giving effect to the requested Loan
or Letter of Credit:
(i) the material representations and warranties contained
herein, on and as the date of such Loan or Letter of Credit, or made in
any writing delivered or furnished pursuant to this Agreement or to induce
and Banks to amend or waive any provisions of this Agreement or extend the
Termination Date on and as of the date as of which made, are or were, as
the case may be, true and correct in all material respects, and provided
the representations and warranties contained in Section 4.5 shall be
deemed to be made with respect to the most recent financial statements
delivered to the Banks; and
(ii) no Event of Default or Unmatured Event of Default shall
have occurred and be continuing.
Section 3.2 Effectiveness of the Agreement. This Agreement shall
------------------------------
not be effective until the following conditions have been satisfied, all of
which shall be deemed either satisfied or waived upon delivery by the Agent of
the certificate attached as Exhibit C:
A. The Revolving Credit Notes. The Borrower shall have delivered
--------------------------
to the Agent for the account of each Bank duly executed Revolving Credit Notes.
B. Certificate of Authority. The Borrower shall have delivered to
------------------------
the Agent a certificate of an officer of the Borrower concerning the authority
of the officers executing this Agreement in form and substance satisfactory to
the Agent.
C. Required Acts and Conditions. All acts and conditions
----------------------------
(including, without limitation, the obtaining of any necessary regulatory
approvals and the making of any required filings, recordings or registrations)
required to be done and performed, and to have happened precedent to the
execution, delivery and performance of this Agreement and the Notes, and to
constitute the same legal, valid and binding obligations enforceable in
accordance with their respective terms, shall have been done and performed and
shall have happened in due and strict compliance with all applicable laws.
D. Documentation and Proceedings. All corporate and legal
-----------------------------
proceedings and all instruments in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Banks and their counsel, Watanabe, Ing & Kawashima, and the
Banks and such counsel shall have received any and all further information
and documents, including records of corporate proceedings, which the Banks
and such counsel may reasonably have requested in connection therewith, such
documents where appropriate to be certified by proper corporate or governmental
authorities.
Section 3.3 Certificate of Agent. When the conditions enumerated
--------------------
under Section 3.2 have been fulfilled, the Agent, on behalf of the Banks, shall
execute and deliver to the Borrower a certificate substantially in the form of
Exhibit C attached hereto.
Section 3.4 Loan Under Term Credit. In the case of the Term Loans
----------------------
pursuant to Section 1.5 above, the Borrower shall have delivered to the Agent
for the account of the Banks Term Notes complying with the requirements of
Section 1.6 above.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE BORROWER
-----------------------------------------------------------
As an inducement to the Banks to enter into this Agreement and to
make the Loans, and to the Agent to issue the Letters of Credit, both as
provided for herein, the Borrower represents and warrants to the Banks and the
Agent as follows:
Section 4.1 Due Incorporation, Qualification, Etc. The Borrower and
--------------------------------------
each of the Significant Subsidiaries are corporations duly organized, validly
existing and in good standing under the law of the jurisdiction in which they
are incorporated and each are authorized to do business in the jurisdictions in
which its ownership of property or conduct of business legally requires such
authorization and where failure to do so would have a material adverse effect
on the Borrower or any such Significant Subsidiary, and has full power and
authority to own its properties and assets and to conduct its business as
presently conducted.
Section 4.2 Capacity. The Borrower has full power and authority to
--------
execute and deliver, and to perform and observe the provisions of, this
Agreement and the Notes and to carry out the transactions contemplated hereby
and thereby.
Section 4.3 Authority and Enforceability. The execution, delivery
----------------------------
and performance by the Borrower of this Agreement and the Notes have been duly
authorized by all necessary corporate action, and do not and will not require
any registration with, consent or approval of, notice to, or any action by, any
Person, except such, if any, as have been obtained in writing, copies of which
consents have been furnished to the Banks. This Agreement constitutes, and the
Notes when or as delivered by the Borrower hereunder will or do constitute,
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the enforcement of creditors' rights
generally and by the effect of rules of law governing specific performance,
injunctive relief or other equitable remedies.
Section 4.4 Compliance with other Instruments. The execution and
---------------------------------
delivery of this Agreement and compliance with its terms, and the issuance of
the Notes as contemplated herein, will not result in a material breach of any
of the terms or conditions of, or result in the imposition of any lien, charge
or encumbrance upon any properties of the Borrower or its Subsidiaries pursuant
to, or constitute a default (with due notice or lapse of time or both) or
result in an occurrence of an event for which any holder or holders of Funded
Indebtedness with any unpaid principal balance of $1,000,000 or more may
declare the same due and payable under, any indenture, agreement, order,
judgment or instrument under which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any of its Subsidiaries or its or their
property may be bound or affected, or under the charter documents or bylaws of
the Borrower or any its Subsidiaries, and will not violate any existing
provision of law applicable to the Borrower.
Section 4.5 Financial Statements. The consolidated financial
--------------------
statements of the Borrower as of and for the year ended December 31, 2000, as
audited by Deloitte & Touche, LLP, and the consolidated unaudited financial
statements of the Borrower as of June 30, 2001, which statements are duly
certified by the Chief Financial Officer of the Borrower, are complete, correct
and present fairly the financial position and results of operations as of or
for the periods indicated, all in accordance with GAAP applied on a consistent
basis, except as set forth in the notes thereto.
Section 4.6 Material Adverse Events. Since December 31, 2000, there
-----------------------
has been no material adverse change in the business, financial position or
results of operations of the Borrower and its Subsidiaries, considered as a
whole.
Section 4.7 Litigation, Etc. Except as reflected in the financial
---------------
statements referred to in Section 4.5 or as otherwise disclosed to the Banks in
writing, (including, without limitation, for such purposes, any document
furnished to the Banks pursuant to Section 6.1) there are no actions, suits or
proceedings (whether or not purportedly on behalf of the Borrower) pending, or
to the knowledge of the Borrower threatened, against or affecting the Borrower
or any of its Subsidiaries, at law or in equity, which, if adversely
determined, could have a material adverse effect on the business, properties or
condition (financial or otherwise) of the Borrower and its Subsidiaries taken
as a whole. Any action, suit or proceeding as to which the Borrower and/or the
relevant Subsidiary or Subsidiaries have received, from the counsel
representing the Borrower and/or the relevant Subsidiary or Subsidiaries
therein, a written opinion that the likelihood of the successful assertion of
any liability that could have a material adverse effect as described in the
preceding sentence is remote, shall not be deemed an action, suit or proceeding
which could have such a material adverse effect. After due inquiry, to the
knowledge of the Borrower, neither the Borrower nor any of its Subsidiaries is
in violation or default with respect to any applicable laws and/or regulations
which materially affect the operations and/or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole nor are they,
or any of them, in violation or default with respect to any order, writ,
injunction, demand or decree of any court or any governmental agency or in
violation or default in any material respect under any indenture, agreement or
other instrument under which the Borrower or any of its Subsidiaries is a party
or may be bound, default under which there might be consequences that would
materially and adversely affect the business, properties or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole.
Section 4.8 Title. The Borrower and its Subsidiaries have good and
-----
marketable title to its properties reflected in the consolidated balance sheet
and related notes referred to in Section 4.5 (except (i) those properties
disposed of since the date of such accounts in the ordinary course of business
or as are no longer used or useful in the conduct of its business, (ii) title
defects and encumbrances which either individually or in the aggregate are of
no material consequence to the Borrower and its Subsidiaries taken as a whole,
(iii) such vessels and other assets of Xxxxxx, title to which is held in the
name of owner trusts or similar entities pursuant to the requirements of the
transactions by which the construction and/or purchase of the same were
financed, and (iv) property leased pursuant to finance leases) and all
properties and assets acquired by the Borrower or a Subsidiary thereafter and
prior to the Effective Date; and all such properties and assets are not subject
to any lien (including any encumbrance or security interest), except liens
permitted under Section 7.3 hereof and those which are reflected in the most
recent balance sheet (referred to in Section 4.5) and the related notes.
Section 4.9 Patent and Other Rights. The Borrower and its
-----------------------
Subsidiaries either possess or have applied for all material patents, licenses,
trademarks, trade names, trade secrets, copyrights and all rights with respect
thereto, which are required to conduct their business as now conducted without
known conflict with the rights of others which would materially affect the
business, properties or condition (financial or otherwise) of the Borrower and
its Subsidiaries, taken as a whole.
Section 4.10 Adverse Contracts and Orders. Except as heretofore
----------------------------
publicly disclosed or disclosed in writing to the Banks, neither the Borrower
nor any of its Subsidiaries is a party to or is bound by, or subject to, any
contract, instrument, charter, bylaw or other corporate restriction or any
order, decree or judgment of any Person (the "Restrictive Documents") which
materially and adversely affects the business, properties or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole
or is in material default in the performance, observance, or fulfillment of any
of the material obligations or conditions contained in any of such Restrictive
Documents.
Section 4.11 Taxes. The Borrower has filed or caused to be filed
-----
all material tax returns which are required to be filed by it and any of its
Subsidiaries, pursuant to the laws, regulations or orders of each Person with
taxing power over the Borrower or any of its Subsidiaries or the assets of any
thereof. The Borrower and each of its Subsidiaries has paid, or made provision
for the payment of, all material taxes, assessments, fees and other govern-
mental charges which have or may have become due pursuant to said returns, or
otherwise, or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith
and as to which adequate reserves (determined in accordance with generally
accepted accounting principles) have been provided. Federal income tax returns
of the Borrower have been audited by and settled with the Internal Revenue
Service or the statute of limitations has expired for all years to and
including the fiscal year ended December 31, 1998, and the results of such
settlement are or will be properly reflected in the financial statements
referred to in Section 4.5 and Section 6.1. The charges, accruals and reserves
in respect of taxes on the books of the Borrower are sufficient to comply with
generally accepted accounting principles. The Borrower knows of no proposed
material tax assessment against it or any of its Subsidiaries, and no extension
of time for the assessment of federal, state or local taxes of the Borrower or
any of its Subsidiaries is in effect or has been requested except in either
case as disclosed in the financial statements furnished to the Banks pursuant
to Sections 4.5 and 6.1A, and except for extensions obtained in the ordinary
course of business.
Section 4.12 Lawful Use of Proceeds; Compliance with Federal Reserve
-------------------------------------------------------
Board Regulations. All proceeds of the Revolving Loans shall be used by the
-----------------
Borrower for its general working capital purposes or to make Friendly
Acquisitions or by the Borrower to repurchase shares of the capital stock of
the Borrower. No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying or trading in any
securities under such circumstances as to involve the Borrower in a violation
of Regulation X of the Federal Reserve Board or the Banks in a violation of
Regulation U of the Federal Reserve Board. If requested by the Banks, the
Borrower will furnish to the Banks in connection with the Loans a statement in
conformity with the requirements of Federal Reserve Form U-1 referred to in
said Regulation U.
Section 4.13 Employee Retirement Income Security Act of 1974.
-----------------------------------------------
A. To the best of the Borrower's knowledge, after due inquiry, no
material Reportable Event has occurred and is continuing with respect to any
Plan.
B. No accumulated funding deficiency (as defined in section 302 of
ERISA and section 412 of the Code), whether or not waived, exists with respect
to any Plan (other than a Multiemployer Plan). No liability to the PBGC has
been or is expected by the Borrower or any ERISA Affiliate to be incurred with
respect to any Plan (other than a Multiemployer Plan) by the Borrower, any
Subsidiary or any ERISA Affiliate which is or would be materially adverse to
the business, condition (financial or otherwise) or operations of the Borrower
and its Subsidiaries taken as a whole. Neither Borrower, any of its
Subsidiaries nor any ERISA Affiliate has incurred or presently expects to incur
any withdrawal liability under Title IV or ERISA with respect to any Multi-
employer Plan which is or would be materially adverse to the Borrower and its
Subsidiaries taken as a whole. The execution and delivery of this Agreement
and of the Notes will be exempt from, or will not involve any transaction in
connection with which a penalty could be imposed under section 502(i) of ERISA
or a tax could be imposed pursuant to section 4975 of the Code. The
representation by the Companies in the next preceding sentence is made in
reliance upon and subject to the accuracy of each Bank's representation in
Article V.
Section 4.14 Investment Borrower(s) Act of 1940. Neither the
----------------------------------
Borrower nor any of its Subsidiaries is an "investment borrower(s)" within the
meaning of the Investment Borrower Act of 1940.
Section 4.15 Subsidiaries. Exhibit E is a complete and correct list
------------
of all present Subsidiaries of the Borrower, which list shows for each
Subsidiary, its state or jurisdiction of incorporation, its principal business,
and the number and percentage of its outstanding securities owned of record
and/or beneficially by the Borrower. Except as disclosed in Exhibit E,
Borrower directly or indirectly owns, free and clear of all liens, charges,
encumbrances and rights of others whatsoever, all shares of such Subsidiaries
shown on Exhibit E, and all shares of Significant Subsidiaries are validly
issued and fully paid.
Section 4.16 Solvency. The fair value of the property of Borrower
--------
is greater than the total amount of liabilities, including without limitation
contingent liabilities, of Borrower; the present fair salable value of the
assets of Borrower is not less than the amount that will be required to pay the
probable liability of Borrower on its debts as they become absolute and
matured; Borrower does not intend to, nor does it believe that it will, incur
debts or liabilities beyond its abilities to pay as such debts and liabilities
mature; and Borrower is not engaged in a business or a transaction, or about to
engage in a business or a transaction, for which Borrower's property would
constitute an unreasonably small capital.
ARTICLE V - REPRESENTATION OF THE BANKS
---------------------------------------
Each Bank represents that it is its present intention to make the
Loans for its own account and not to make any public offering or to effect any
distribution of the Notes, subject nevertheless to any requirement of law that
the disposition of its Notes should remain within the control of such Bank.
Each Bank further represents and warrants that no Loan made by it will be made
out of the assets of any separate account maintained by it in which any Plan
(or any individual account plan maintained for employees of the Borrower or any
Subsidiary) has an interest, nor will such Bank assign or otherwise transfer
any of its Loans or Notes to any Plan.
ARTICLE VI - AFFIRMATIVE COVENANTS OF THE BORROWER
--------------------------------------------------
During the term of this Agreement and until payment in full of the
obligations, unless compliance shall have been waived in accordance with
Section 12.10 by the Majority Banks, the Borrower agrees that:
Section 6.1 Financial Records, Statements and Reports and
---------------------------------------------
Inspection.
----------
A. The Borrower at all times will keep, and will cause each of its
Subsidiaries to keep, books of record and account in which proper entries will
be made of its financial transactions in accordance with generally accepted
accounting principles and will furnish to the Banks:
(i) as soon as possible and in any event within ten days after
any officer of the Borrower has knowledge of the occurrence of each Event
of Default, or each Unmatured Event of Default which is continuing on the
date of such statement, the statement of the chief financial officer of
the Borrower setting forth details of such Event of Default or Unmatured
Event of Default and the action which the Borrower propose to take with
respect thereto;
(ii) as soon as available and in any event within 45 days after
the close of each of the first three quarters of the Borrower's fiscal
year, (a) a consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries as of the end of such quarter and comparative
consolidated statements of income for such quarter and year to date, and
(b) a statement that, to the best of the Borrower's knowledge, after due
inquiry, no event which constitutes an Event of Default or Unmatured Event
of Default hereunder has occurred and is continuing, each certified by the
chief financial officer of the Borrower;
(iii) as soon as available and in any event within 90 days
after the close of the Borrower's fiscal year, (a) a copy of the annual
report for such year for the Borrower and its Subsidiaries, including
therein an audited consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and
audited consolidated statements of income and shareholders' equity of the
Borrower and its Subsidiaries for such fiscal year, in the case of each of
the audited statements, covered by the opinions of Deloitte & Touche, LLP
or other independent public accountants of recognized standing reasonably
acceptable to the Banks; and (b) a letter of the chief financial officer
of the Borrower, dated as of the end of such year, stating that, to the
best of the Borrower's knowledge, after due inquiry, no event which
constitutes an Event of Default or Unmatured Event of Default hereunder
has occurred and is continuing;
(iv) within 45 days after the close of each of the first three
quarters of the Borrower's fiscal year, and within 90 days after the close
of the Borrower's fiscal year, a "Compliance Certificate" in form
reasonably satisfactory to the Banks comparing the required quantitative
covenants set forth in Section 7.1, 7.2, 7.4, 7.5 and 7.8 hereof and
certified as correct by the chief financial officer of the Borrower;
(v) prompt notice of any Reportable Condition reported to the
Borrower, or to the Borrower's Board of Directors, by the Borrower's
independent public accountants;
(vi) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements, and reports which the Borrower
sends to its stockholders, and copies of all regular, periodic and special
reports, and all registration statements under the Securities Act of 1933,
as amended, which the Borrower or any Subsidiary files with the Securities
and Exchange commission, with any governmental authority successor
thereto, or with any national securities exchange;
(vii) promptly after the furnishing thereof, copies of any
statement or report furnished to any other holder of the securities of the
Borrower pursuant to the terms of any indenture, loan or credit, or
similar agreement, and not otherwise required to be furnished to the Bank
pursuant to any other clause of this Section 6.1A;
(viii) prompt notice of any condition or event which has
resulted in (a) a material adverse change in the Borrower's consolidated
financial condition or (b) a material breach of or noncompliance with any
material term, condition or covenant of any material contract to which the
Borrower or any Significant Subsidiary is a party or by which it or its
property may be bound;
(ix) prompt written notice of any claims, proceedings or
disputes (whether or not purportedly on behalf of the Borrower) against,
or to the knowledge of the Borrower, threatened against or affecting, the
Borrower and/or any of its Subsidiaries not fully covered by insurance
(other than usual and customary deductibles), which, if adversely
determined, would have a material adverse effect on the business,
properties or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole (without in any way limiting the foregoing,
claims, proceedings, or disputes involving monetary amounts the uninsured
portion of which is in excess of $5,000,000 shall be deemed to be
material, other than claims for personal injury brought by seamen and
longshoremen against Xxxxxx unless there exists a substantial probability
that the uninsured liability of Xxxxxx thereunder will be in excess of
$5,000,000), or any material labor controversy resulting in a strike
against the Borrower or any Significant Subsidiary that is likely to have
a material adverse effect on the condition (financial or otherwise) of
the Borrower or such Significant Subsidiary, or any proposal by any public
authority to acquire any material amount of the assets or business of the
Borrower or any Significant Subsidiary;
(x) (a) and will cause each of its Subsidiaries to furnish to
the Banks, as soon as possible, and in any event, within thirty (30) days
after the Borrower or any of its Subsidiaries knows that any material
Reportable Event with respect to any Plan has occurred, a statement of the
chief financial officer of the affected Borrower or Subsidiary setting
forth details as to such material Reportable Event and the action which
the affected Borrower or Subsidiary proposes to take with respect thereto,
together with a copy of the notice of such material Reportable Event given
to the PBGC, if a copy of such notice is available to the affected
Borrower or Subsidiary, (b) prompt written Notice of any decision by the
Borrower, any Subsidiary or any member of the Controlled Group to
terminate or withdraw from any Plan, and (c) promptly after receipt
thereof a copy of any notice of intent to terminate any Plan or to appoint
a trustee to administer any Plan which the Borrower, any Subsidiary or any
member of the Controlled Group may receive from the PBGC or the Internal
Revenue Service with respect to any Plan; and
(xi) at any time the value of all Margin Stock and Publicly
Traded Securities owned by the Borrower and its Subsidiaries exceeds (or
following application of the proceeds of an intended Borrowing hereunder
to a Friendly Acquisition would exceed) 25% of the value of the total
assets of the Borrower and its Subsidiaries, in each case as reasonably
determined by the Borrower, the Borrower shall give prompt Notice of such
fact to the Agent.
B. So long as the Borrower is required to file periodic reports
with the Securities and Exchange Commission (or any successor agency thereto)
under the Securities Exchange Act of 1934 (or any successor statute thereto),
the Borrower shall be deemed to have fulfilled their obligations under Sections
6.1A(ii)(a) and 6.1A(iii)(a) to provide consolidated financial statements if
they timely furnish the Banks the Borrower's quarterly report on Form 10-Q and
its annual report on Form 10-K, respectively (or any successor forms required
to be filed under such Act if they contain substantially the same information).
C. The Borrower will, upon request, furnish to the Banks and will
cause any of its Subsidiaries to furnish such information as the Banks may
reasonably request with respect to the business, affairs or condition
(financial or otherwise) of the Borrower or any of its Subsidiaries, and will
permit and will cause its Subsidiaries to permit the Banks or representatives
thereof, with reasonable prior Notice, at any reasonable time or times, to
inspect the properties of the Borrower or its Subsidiaries, and to inspect and
examine the books or records of the Borrower and its Subsidiaries and to take
extracts therefrom, in each case while accompanied by an officer or
representative of the Borrower, provided that the information obtained pursuant
to this Section 6.1C, to the extent not otherwise publicly available, shall
remain confidential, but shall be available to the Agent and the other Banks
(until such time, if any, as it otherwise becomes publicly available), subject,
however, to any laws, regulations or orders of any court or governmental agency
requiring the Banks to divulge any of such information.
Section 6.2 Insurance. The Borrower will maintain, and will cause
---------
its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or
Subsidiary operates. Notwithstanding the foregoing, the Borrower or any of its
Subsidiaries may maintain a plan or plans of self-insurance to such extent and
covering such risks as is usual for companies of comparable size engaged in the
same or similar business, and, on request, the Borrower will advise the Banks
concerning any such plan or plans for self-insurance.
Section 6.3 Other Debt. The Borrower will promptly pay and
----------
discharge, and will cause its Subsidiaries to promptly pay and discharge, any
and all Indebtedness, liens, charges, taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any of
its properties prior to the date on which penalties accrue thereon, and lawful
claims which, if unpaid, might become a lien or charge upon the property of the
Borrower or such Subsidiary, except such as may in good faith be contested or
disputed, or for which arrangements for deferred payment have been made,
provided appropriate reserves are maintained to the reasonable satisfaction of
the Majority Banks.
Section 6.4 Maintenance of Existence; Conduct of Business. The
---------------------------------------------
Borrower will preserve and maintain, and will cause each of its Significant
Subsidiaries to preserve and maintain, its corporate existence, and all of its
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, and will conduct its business in an orderly and efficient
manner, keep the properties which are useful or necessary in its business in
good working order and condition, and will comply with all applicable laws and
regulations of any governmental authority and the terms of any indenture,
contract or other instrument to which it may be a party or under which it or
its properties may be bound, if noncompliance will have a material adverse
effect upon its consolidated financial condition, except where contested in
good faith and by proper proceedings; provided, however, that nothing herein
-------- -------
contained shall prevent the Borrower or any of its Subsidiaries from exercising
any of their rights under Sections 7.4 and 7.5 of this Agreement.
Section 6.5 Expenses. The Borrower will pay all reasonable out-of-
--------
pocket expenses of the Agent (including, but not limited to, reasonable fees
and disbursements of the Agent's special counsel) incident to the preparation,
execution and delivery of, and the making of the Loans or Letters of Credit
under this Agreement, the administration of the Loans or Letters of Credit, any
amendments to or waivers of this Agreement, the protection of the rights of the
Banks under this Agreement and the enforcement of payment of the Obligations,
whether by judicial proceedings or otherwise; provided, however, that upon and
-------- -------
after the occurrence of an Event of Default under Section 8.1F, the Borrower
shall pay the reasonable fees and disbursements of each Bank's counsel incurred
by such Bank in its dealings with the Borrower after the occurrence of such
Event of Default. The billing rates usually and customarily charged by the
counsel referred to in the above proviso in the jurisdiction in which it
maintains its principal offices shall be deemed reasonable under the provisions
of this Section 6.5 even if such rates are greater than the billing rates
usually and customarily charged by counsel whose principal offices are located
in a different jurisdiction where a proceeding to enforce the rights of the
Banks or any Bank under this Agreement may be pending. The Obligations of the
Borrower under this Section 6.5 shall survive payment of the Loans or Letters
of Credit and cancellation of the Notes.
Section 6.6 Advice of Acquisition. Not later than five (5) Business
---------------------
Days before the proposed Borrowing Date of any Borrowing, the proceeds of which
are proposed to be used to make an Acquisition or to replenish any portion of
the Borrower's working capital that is proposed to be or has been expended to
make an Acquisition, the Borrower shall give a Notice to the Agent (which shall
promptly transmit the same to the Banks) specifying: (a) the identity of the
Person the securities or assets of which were or are to be acquired in the
Acquisition, (b) the nature of the Acquisition, (c) the tentative principal
amount of Loans or Letters of Credit to be outstanding at any one time with
respect to such Acquisition; and (d) with respect to a proposed Acquisition,
whether or not the Borrower believes it will be a Friendly Acquisition and the
-- ---
basis for such belief. It is understood and agreed that notwithstanding the
provisions of this Section 6.6, the Banks shall make any Loan the proceeds of
which are to be used to make a Friendly Acquisition if the requirements of
Article I hereof have been fulfilled with respect to the proposed Borrowing and
if the conditions of Section 3.1 hereof have been met. Any Acquisition other
than a Friendly Acquisition for which the proceeds of a Borrowing shall be used
shall require the consent of the Majority Banks.
ARTICLE VII - NEGATIVE COVENANTS OF THE BORROWER
------------------------------------------------
During the term of this Agreement and until the payment in full of
any and all Obligations of the Borrower, without the consent of the Majority
Banks given in accordance with Section 12.10:
Section 7.1 Financial Covenants. The Borrower agrees that it will
-------------------
not:
A. Commencing with the fiscal year beginning January 1, 2001,
permit the Borrower's Consolidated Tangible Net Worth to be less than the sum
of (x) $530,000,000 plus (y) 25% of the Borrower's Consolidated Cumulative Net
Income after December 31, 2000 (such required minimum net worth not to be
reduced by any consolidated net loss during any such period).
B. (i) At any time that the aggregate principal balance of Loans
and Letters of Credit outstanding hereunder is less than $75,000,000, permit
the Borrower's Consolidated Current Assets plus the amount available to the
Borrower under committed (subject only to conditions precedent that are or
could promptly be satisfied) but unfunded lines of credit (including amounts
available hereunder) to be less than 130% of the Borrower's Consolidated
Current Liabilities, and (ii) at any time that the aggregate principal balance
of Loans and Letters of Credit outstanding hereunder is $75,000,000 or more,
permit the Borrower's Consolidated Current Assets plus the amount available
to the Borrower under committed (subject only to conditions precedent that are
or could promptly be satisfied) but unfunded lines of credit (including amounts
available hereunder) to be less than 100% of the Borrower's Consolidated
Current Liabilities.
C. Permit the Borrower's consolidated Contingent Liabilities to be
more than 20% of its Consolidated Tangible Net Worth.
D. Permit the Borrower's Interest Coverage Ratio for any fiscal
quarter (measured at the end of such fiscal quarter) to be less than 2.0 to
1.0.
Section 7.2 Indebtedness. The Borrower agrees that it will not, and
------------
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist, or otherwise become or be liable in respect of any Funded Indebtedness,
other than Funded Indebtedness which, together with all other Funded
Indebtedness of the Borrower and its Subsidiaries, does not exceed 300% of
Consolidated Net Income Before Interest, Taxes, Depreciation and Amortization.
Section 7.3 Liens. The Borrower agrees that it will not, and will
-----
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any lien (including any encumbrance or security interest) of any kind upon any
of its assets, whether now owned or hereafter acquired, except:
A. liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being contested in good faith, and liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of business for sums
not overdue or being contested in good faith, provided provision is made to the
satisfaction of the Banks for the eventual payment thereof in the event it is
found that such is payable by the Borrower or any of its Subsidiaries;
B. liens incurred in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders and
statutory obligations entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds, or easements, rights of way,
restrictions and similar encumbrances incurred in the ordinary course of
business and not interfering with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries nor materially and adversely affecting the
value of the properties encumbered;
C. material judgment liens in existence less than thirty (30) days
after the entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full by insurance;
D. liens existing on the Effective Date reflected in the latest
balance sheet furnished to the Banks pursuant to Section 6.1A or any mortgage
or lien which replaces an existing mortgage or other lien, provided the
principal amount of the debt secured by the replacing mortgage or lien does not
exceed the principal amount at the time of replacement of the existing mortgage
or lien, or cover property different from the property covered by the existing
mortgage or lien;
E. liens and mortgages on the vessels owned or to be owned or
chartered, or any shoreside facilities or equipment to be owned or leased by
Xxxxxx or its Subsidiaries;
F. the giving, simultaneously with or within ninety (90) days after
the acquisition or construction of real property or tangible personal property,
of any purchase money lien (including vendor's rights under purchase contracts
under an agreement whereby title is retained for the purpose of securing the
purchase price thereof) on real property or tangible personal property
hereafter acquired or constructed and not heretofore owned by the Borrower or
any of its Subsidiaries, or the acquiring hereafter of real property or
personal tangible property not heretofore owned by the Borrower or any of its
Subsidiaries subject to any then existing lien (whether or not assumed);
provided, however, that in each such case (i) such lien is limited to such
-------- -------
acquired or constructed real or tangible personal property, and (ii) the
principal amounts of the Indebtedness secured by each such lien, together
(without duplication) with the principal amount of all other Indebtedness
secured by liens on such property, shall not exceed 100% of the cost (which
shall be deemed to include the amount of Indebtedness secured by liens,
including existing liens, on such property) of such property to the Borrower
or any of its Subsidiaries;
G. liens incurred in the ordinary course of the Borrower's property
development activities not in excess, in the aggregate, of eighty-five million
dollars ($85,000,000) plus an additional five million dollars ($5,000,000) for
each completed calendar year commencing with the year ended December 31, 2001,
provided that each lien permitted by this Section 7.3G shall be limited to such
real and personal property secured thereby and the aggregate principal amounts
of the debt secured by each such lien, together with the principal amount of
all other debt secured by liens on such property, shall not exceed one-hundred
percent (100%) of the cost (which cost shall be deemed to include the amount of
debt secured by liens, including existing liens, on such property) of such
property to the Borrower;
H. other liens, charges or encumbrances incidental to the conduct
of the business of the Borrower and its Subsidiaries or the ownership of their
property and assets which were not incurred in connection with the borrowing of
money or the obtaining of advances of credit and which do not in the aggregate
materially detract from the value of their property or assets or materially
impair the use thereof in the operation of their businesses.
Section 7.4 Sale of Assets. The Borrower agrees that it will not,
--------------
and Borrower agrees that it will not permit Xxxxxx or any Subsidiary of Xxxxxx
to, sell the accounts, contract rights or receivables pertaining to its
business or sell, lease, abandon or otherwise dispose of, directly or
indirectly, its assets or any portion thereof except in the ordinary course of
business; provided, however, that the Borrower, Xxxxxx or any Subsidiary of
-------- -------
Xxxxxx may discontinue or sell the operations of any division of its business
(other than discontinuing or selling the Borrower's HC&S division substantially
in its entirety), or otherwise may dispose of any operation, right, privilege
or property, if management shall deem the same advisable in the interest of the
business of the Borrower and of Xxxxxx and Matson's Subsidiaries, subject to
the provisions of Section 7.5 hereof, and subject to the further provisions
that, (i) in any fiscal year, the aggregate value of all such dispositions not
in the ordinary course of business shall not exceed twenty percent (20%) of
Consolidated Total Assets, and (ii) from and after September 30, 1996, the
aggregate value of all such dispositions not in the ordinary course of business
shall not exceed three hundred sixty million dollars ($360,000,000), provided
--------
that at any time such assets disposed of since the beginning of the most
recently ended fiscal year shall not have contributed more than an average of
twenty percent (20%) of Borrower's Consolidated Net Income during the two most
recently ended fiscal years and, provided further that the proceeds of any such
-------- -------
dispositions in excess of one hundred million dollars ($100,000,000) after
September 30, 1996 shall be applied to the repayment of Funded Indebtedness.
Sales of assets from the Borrower's property management and development
activities, and sales of marketable securities owned by the Borrower and that
are not securities issued by a Subsidiary shall be deemed within the ordinary
course of business.
Section 7.5 Consolidation, Merger, Etc. The Borrower agrees that it
--------------------------
will not, and agrees it will not permit either Xxxxxx or any Subsidiary of
Xxxxxx to, consolidate or merge with, or sell (whether in one transaction or in
a series of transactions) all or substantially all of its assets to any Person,
except that Xxxxxx and any Subsidiary of Xxxxxx may merge with or transfer
assets to one another, the Borrower, or any other Subsidiary; provided, that
after such merger or transfer such other Subsidiary shall be subject to the
provisions of Article VII hereof.
Section 7.6 Investment, Advances and Guarantees. The Borrower
-----------------------------------
agrees that it will not, and Borrower agrees it will not permit Xxxxxx or any
Subsidiary of Xxxxxx to, advance funds to (by way of loan) or to incur any
Indebtedness with respect to the obligations of, any Person (other than (i) the
Borrower, or a Subsidiary, (ii) employees thereof in connection with customary
employee benefit arrangements, (iii) owner trusts and similar title holding
entities used in transactions to finance vessels, shoreside facilities or
equipment and other facilities to be operated by the Borrower, Xxxxxx or any
Subsidiary of Xxxxxx or (iv) partnerships or joint ventures in which the
Borrower and/or any Subsidiary is a partner or joint venturer), or make any
Acquisition other than a Friendly Acquisition.
Section 7.7 Subsidiary Ownership. The Borrower agrees that it will
--------------------
not, except for directors' qualifying shares (if required), directly or
indirectly sell, assign, pledge or otherwise transfer (except to a subsidiary)
any indebtedness of or claim against Xxxxxx or any Subsidiary of Xxxxxx or any
shares of stock or securities of Xxxxxx or any Subsidiary of Xxxxxx; and
Borrower will not permit Xxxxxx or any Subsidiary of Xxxxxx to sell, assign,
pledge or otherwise transfer (except to the Borrower, Xxxxxx or a Subsidiary of
Xxxxxx) any Indebtedness of or claim against the Borrower, Xxxxxx or any
Subsidiary of Xxxxxx or any shares of stock or securities of Xxxxxx or any
Subsidiary of Xxxxxx, except pursuant to a transaction permitted under Section
7.4 or 7.5 of this Agreement.
Section 7.8 Dividends, Redemptions. The Borrower agrees that it
----------------------
will not, and will not permit any of its Subsidiaries to, directly or
indirectly:
A. Declare or pay any dividend or other distribution on any class
of its capital stock or other equity interests, redeem or repurchase any such
interests or make any other distribution on account of any such interests (all
of the foregoing being "Restricted Payments"), except that the Borrower may
make Restricted Payments in any amount so long as (i) no Event of Default or
Unmatured Event of Default shall then be existing or be existing after giving
effect to any such Restricted Payment, and (ii) any such Restricted Payment
will not violate any applicable law or regulation, including Regulation U of
the Board of Governors of the Federal Reserve System.
B. Redeem, retire, purchase or otherwise acquire beneficially any
shares of any class of its own stock, or any stock of the Borrower or any of
its Subsidiaries, now or hereafter outstanding, or set apart any sum for any
such purposes, except that the Borrower may redeem, retire, or repurchase its
own shares, if such shares are immediately retired and canceled, or if the
Borrower delivers to the Agent an opinion of counsel in form and substance
reasonably satisfactory to the Majority Banks that failure to retire and cancel
such shares will not result in the Banks being involved in a violation of
Regulation U of the Board of Governors of the Federal Reserve System; provided,
--------
however, that the preceding requirements pertaining to cancellation or
-------
retirement or the provision of an opinion of counsel shall not apply to shares
being redeemed, retired or repurchased pursuant to an employee benefit plan,
or to options granted employees in the ordinary course of business.
On and after the date, if any, on which Consolidated Tangible Net
Worth declines to an amount equal to $50,000,000 below the amount then
permitted under Section 7.1A(i), the Borrower shall be prohibited from
reacquiring such shares as aforesaid. Notwithstanding the provisions of the
preceding sentence, the Borrower may reacquire shares as aforesaid when
Consolidated Tangible Net Worth has declined to an amount more than $50,000,000
below the amount then permitted under Section 0.xX(i), but the aggregate net
consideration paid by the Borrower for such reacquisitions shall not exceed
$1,000,000 and each such reacquisition shall be only pursuant to an employee
benefit plan or to options granted employees in the ordinary course of
business. When Consolidated Tangible Net Worth has once again increased to the
amount then permitted under Section 0.xX(i), the Borrower may reacquire such
shares as aforesaid, in any amount that will not result in Consolidated
Tangible Net Worth declining to more than $50,000,000 below the amount then
permitted under Section 0.xX(i). Upon any such reacquisition, in any amount,
the Borrower shall once again become subject to the provisions of the first
sentence of this paragraph.
Section 7.9 Release of Restrictions. The restrictions of Sections
-----------------------
7.3 and 7.4 shall not apply to any Margin Stock or Publicly Traded Securities
owned by the Borrower or its Subsidiaries to the extent the value of such
Margin Stock and Publicly Traded Securities exceeds 25% of the value of the
total assets of the Borrower and its Subsidiaries.
ARTICLE VIII - EVENTS OF DEFAULT
--------------------------------
Section 8.1 Events of Default. If one or more of the following
-----------------
described events shall occur ("Event of Default"):
A. The Borrower shall fail to pay interest or any part thereof
within three (3) days of the same becoming due or shall fail to pay any
principal or any part thereof on the day the same becomes due; or
B. The Borrower shall fail to perform or observe any of the
provisions contained in Article VII hereof; or
C. The Borrower shall fail to perform or observe any of the
provisions contained in any other Article of this Agreement and such failure
shall continue for more than thirty (30) days after the Agent gives the
Borrower Notice of such failure; or
D. Any material representation or warranty made herein or in any
writing delivered or furnished pursuant to this Agreement or to induce the
Banks to amend or waive any provisions of this Agreement or to extend the
Termination Date, shall prove to have been false or incorrect in any material
respect, or omits to state a material fact required to be stated therein in
order to make the statements contained therein, in the light of the
circumstances under which made, not misleading, on the date as of which made;
or
E. The Borrower shall (i) cause a default in any required payment
to be made, beyond any applicable grace period, or cause a material default in
the performance of any other term, covenant or condition, beyond any applicable
grace period, such default in any required payment or such material default in
the performance of any other term, covenant or condition being as defined in
any evidence of Funded Indebtedness, with a remaining unpaid principal amount
of $5,000,000 or more made or issued by the Borrower or under any indenture,
agreement or other instrument under which the same may be issued, or (ii)
permit any Significant Subsidiary to cause a default in any required payment to
be made, beyond any applicable grace period, as defined in any evidence of
Funded Indebtedness, with a remaining unpaid principal amount of $5,000,000 or
more made or issued by any Significant Subsidiary or under any indenture,
agreement or other instrument under which the same may be issued, or (iii)
cause, or permit any Significant Subsidiary to cause, any event which may
result in the holder or holders of any Funded Indebtedness, with a remaining
unpaid principal amount of $5,000,000 or more made or issued by the Borrower
or any Significant Subsidiary or under any indenture, agreement or other
instrument under which the same may be issued, to declare the same due and
payable before its stated maturity, whether or not such acceleration occurs or
such default shall be waived, except where the Borrower or such Significant
Subsidiary is contesting or disputing in good faith that such a default has
occurred, provided that with respect to any such event caused by a Significant
Subsidiary other than a default in a required payment, acceleration of the
Funded Indebtedness shall have occurred; or
F. The Borrower or any Significant Subsidiary shall be the subject
of an order for relief entered by any United States Bankruptcy Court, or shall
be adjudicated a bankrupt or insolvent, or shall fail to pay its debts as they
generally come due, or make an assignment for the benefit of creditors; or the
Borrower or any Significant Subsidiary shall apply for or consent to the
appointment of a receiver, trustee, or similar officer for it or for all or any
substantial part of its property; or such receiver, trustee or similar officer
shall be appointed without the application or consent of the Borrower or any
Significant Subsidiary, as the case may be, and such appointment shall continue
undischarged for a period of sixty (60) days; or the Borrower or any
Significant Subsidiary shall institute (by petition, application, answer,
consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding relating
to it under the laws of any jurisdiction; or any such proceeding shall be
instituted (by petition, application or otherwise) against the Borrower or any
Significant Subsidiary and shall remain undismissed for a period of ninety (90)
days; or any judgment, writ, warrant of attachment or execution or similar
process shall be issued or levied against a substantial part of the property of
the Borrower or any Significant Subsidiary and such judgment, writ, or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after its issue or levy; or
G. A final judgment for money, in excess of $5,000,000 not covered
by insurance where the insurer has admitted coverage in writing and the insurer
is reasonably satisfactory to the Majority Banks, shall be rendered against the
Borrower or any Significant Subsidiary and if, within sixty (60) days after
entry thereof, such judgment shall not have been discharged, satisfied or
execution thereof stayed pending appeal, or if, within sixty (60) days after
the expiration of any such stay, such judgment shall not have been discharged
or satisfied; or
H. (i) Any material Reportable Event, which the Majority Banks
determine in good faith constitutes grounds for the termination of any Plan or
Plans by the PBGC or for the appointment by the appropriate United States
District Court of a trustee to administer or liquidate any Plan or Plans, shall
have occurred and be continuing thirty (30) days after written notice of such
determination by the Majority Banks shall have been given to the Borrower, or
(ii) a decision shall have been made by either Borrower, any of their
respective Subsidiaries or any member of the Controlled Group to terminate,
file a notice
of termination with respect to, or withdraw from, any Plan or Plans, or (iii) a
trustee shall be appointed by the appropriate United States District Court to
administer any Plan or Plans, or (iv) the PBGC shall institute proceedings to
terminate any Plan or Plans or to appoint a trustee to administer any Plan or
Plans, and in case of the occurrence of any event described in the preceding
clauses (i), (ii), (iii) and (iv) of this subsection 8.lH, the aggregate amount
of either or both Borrower' liability to the PBGC under Sections 4062, 4063 and
4064 of ERISA as determined in good faith by the Majority Banks could exceed 5%
of Consolidated Tangible Net Worth of the Borrower, and such liability is not
covered in full, for the benefit of the Borrower, by insurance;
THEN, or at any time thereafter:
(1) Where the Borrower is in default under the provisions of Section
8.1F, the commitment to make the Loans (except the obligation to pay any issued
and outstanding Letter of Credit drawn prior to its expiration), and the
Agent's obligation to issue Letters of Credit, shall terminate, and the entire
unpaid principal amount of the Notes, all interest accrued and unpaid thereon,
the amount of all Letters of Credit issued and outstanding, and all other
amounts payable hereunder shall automatically become and be forthwith due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower; and
(2) In any other case referred to in this Section 8.1, the Agent
may, at its option, or shall, if directed by the Majority Banks, by written
notice to the Borrower, terminate its obligation to issue Letters of Credit,
and the Majority Banks may, at their option, by written notice to the Borrower
through the Agent, terminate the Commitments of the Banks to make the Loans
(except the obligation to pay any issued and outstanding Letter of Credit which
is drawn prior to its expiration) and/or declare the entire unpaid principal
amount of the Notes, all interest accrued and unpaid thereon, the amount of all
Letters of Credit issued and outstanding, and all other amounts payable
hereunder shall automatically become and be forthwith due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower. In the case of either (1) or (2) above,
the Banks may immediately, and without expiration of any period of grace,
enforce payment of all Obligations of the Borrower to it under this Agreement
and under the Notes.
Any declaration made pursuant to subparagraph (2) above of this
Section 8.1 is subject to the condition that, if at any time after the
principal of the Notes shall have become due and payable, and before any
judgment or decree for the payment of the moneys so due, or any thereof, shall
have been entered, all arrears of interest upon the Notes and all other
Obligations owed to the Banks (except that principal of the Notes which by such
declaration shall have become payable) shall have been duly paid, and every
other Event of Default shall have been made good, waived or cured, then and in
every such case the Majority Banks may, by written notice to the Borrower,
rescind and annul such declaration and its consequences; but no such rescission
or annulment shall extend to or affect any subsequent default or Event of
Default or impair any right consequent thereon. All such amounts paid by the
Borrower on account of any issued and outstanding Letter of Credit shall be
repaid without interest to the Borrower if such Letter of Credit expires
without having been drawn, and if the Borrower has paid all sums required to be
paid by the Borrower hereunder.
(3) The Agent may demand that the Borrower immediately cash
collateralize the then outstanding amount of all Letters of Credit (in an
amount equal to such outstanding amount) by pledging and depositing with the
Agent, for the benefit of the Agent and the Banks, as collateral for such
outstanding Letters of Credit, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent.
ARTICLE IX - DEFINITIONS
------------------------
Section 9.1 Certain Definitions. As used herein, and unless
-------------------
otherwise defined herein, the following terms shall have the following
respective meanings:
"Acquisition": shall mean the acquisition by a Borrower or any
-----------
Subsidiary (i) of a number of the shares of the capital stock or other
securities of any Person such that at the consummation of the acquisition such
Person will thereby become a Subsidiary, or (ii) the purchase of all or any
substantial division or portion of the assets of any other Person, in either
case in exchange for cash and/or shares of capital stock or other securities of
a Borrower or any other Person.
"Affected Bank": shall mean any Bank affected by any event described
-------------
in the first sentence of any of the first paragraph of Section 2.2, the second
paragraph of Section 2.2, or Section 2.4.
"Agreement": shall mean this Third Amended and Restated Revolving
---------
Credit and Term Loan Agreement and all future amendments and supplements, if
any, thereto.
"Borrower": shall mean Alexander & Xxxxxxx, Inc., a Hawaii
--------
corporation.
"Borrowing": shall mean a borrowing by the Borrower, or the drawing
---------
of a Letter of Credit, from the Banks severally, pursuant to Article I.
"Borrowing Date": shall mean the date on which a Borrowing is, or is
--------------
to be, consummated, as the context may indicate.
"Business Day": shall mean a day, other than Saturday, upon which
------------
banks in the states of Hawaii, California, New York and Washington are open to
conduct their regular banking business.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Commitment": shall mean, when used with reference to any Bank at the
----------
time any determination thereof is to be made, the amount of such Bank's
commitment hereunder to extend credit to the Borrower by means of Loans and
Letters of Credit, which shall be the amounts set forth in Schedule I, as from
time to time reduced by the amount of any permanent reduction in such amount
made pursuant to Section 1.4, or increased pursuant to Section 1.1B or Section
2.5.
"Consolidated Cumulative Net Income": shall mean the aggregate
----------------------------------
Consolidated Net Income of the Borrower for the fiscal period(s) in question.
"Consolidated Current Assets": shall mean those assets of the
---------------------------
Borrower and its Subsidiaries determined on a consolidated basis which would,
in accordance with GAAP, be classified as current assets of a corporation
conducting a business the same as or similar to the business of the Borrower
and its Subsidiaries.
`
"Consolidated Current Liabilities": shall mean Indebtedness of the
--------------------------------
Borrower and its Subsidiaries determined on a consolidated basis which would,
in accordance with GAAP, be classified as current liabilities of a corporation
conducting a business the same as or similar to the business of the Borrower
and its Subsidiaries.
"Consolidated Interest Expense": shall mean the sum of all amounts
-----------------------------
that would, in accordance with GAAP, be deducted in computing Consolidated Net
Income for such period on account of interest, including without limitation,
imputed interest in respect of capitalized lease obligations, fees in respect
of letters of credit and bankers' acceptance financing and amortization of debt
discount and expense.
"Consolidated Net Income": shall mean the net income of the Borrower
-----------------------
and its Subsidiaries determined on a consolidated basis in accordance with GAAP
excluding (net of applicable taxes and expenses thereto): (i) gains in excess
of losses resulting from the sale, conversion, exchange or disposition of
capital assets (i.e., assets other than current assets) other than gains or
losses resulting from the sales of purchased or developed real property sold
for cash, cash equivalents or other property or tangible assets by the Borrower
or any Subsidiary engaged in real-estate activities in the ordinary course of
its property management and development activities; (ii) gains resulting from
the write-up of assets to the extent permitted under GAAP; (iii) losses
resulting from the write-down of impaired assets in accordance with GAAP;
(iv) equity of the Borrower or its Subsidiaries in the unremitted earnings of
any company or entity not required to be consolidated with the Borrower under
GAAP; (v) losses resulting from the write-down of intangible assets, including
goodwill, as required under GAAP; (vi) net income, gains or losses resulting
from any change in accounting, from any discontinued operations or the
disposition thereof, from any extraordinary events, from any cumulative changes
in statutory tax rates, or from any prior period adjustments, all determined in
accordance with GAAP.
"Consolidated Net Income Before Taxes": shall mean Consolidated Net
------------------------------------
Income plus the sum of all deferred and current federal, state, local and
foreign taxes that are deducted in accordance with GAAP in computing
Consolidated Net Income for such period.
"Consolidated Net Income Before Interest, Taxes, Depreciation and
----------------------------------------------------------------
Amortization": shall mean Consolidated Net Income plus the sum of all
------------
(i)Consolidated Interest Expense, (ii) all deferred and current federal, state,
local and foreign taxes, (iii) depreciation expenses, and (iv) amortization
expenses that are deducted in accordance with GAAP in computing Consolidated
Net Income for such period.
"Consolidated Tangible Net Worth": shall mean the consolidated
-------------------------------
Shareholders Equity of the Borrower and its Subsidiaries, determined in
accordance with GAAP, less all Intangibles.
"Consolidated Total Assets": shall mean the Borrower's consolidated
-------------------------
total assets, determined in accordance with GAAP.
"Contingent Liabilities": shall mean, (i) Indebtedness of any Person
----------------------
(other than the Borrower or any of its Subsidiaries) guaranteed by the Borrower
or any of its Subsidiaries, (ii) any contingent liability of the Borrower or
any of its Subsidiaries arising from any litigation that, pursuant to FASB
Statement No. 5 (or any successor thereto), is required to be reported in the
notes to the Borrower's consolidated financial statements referred to in
Section 6.1A(iii) hereof and (iii) Indebtedness of any partnership or joint
venture in which the Borrower or any of its Subsidiaries is a venturer or a
partner, for which the ratio of such partnership's or joint venture's
Indebtedness to its Consolidated Tangible Net Worth is greater than 4 to 1.
"Controlled Group": shall mean a "controlled group of corporations"
----------------
as defined in Section 1563(a) of the Code, as amended, determined without
regard to Section 1563(a)(4) and 1563(e)(3)(C) of the Code, of which the
Borrower is a part.
"Conversion": shall mean a conversion of a Loan into a Prime Loan or
----------
Eurodollar Loan, as the case may be, pursuant to Section 1.8 (including any
such conversion made as a result of the operation of the last sentence of
Section 1.7B) or Article II.
"Conversion Date": shall mean the date on which a conversion is, or
---------------
is to be, consummated, as the text may indicate.
"Date": shall mean, with respect to any stock redemption, retirement
----
or repurchase permitted under Section 7.8B, the last day of the calendar
quarter immediately preceding the calendar quarter in which such redemption,
retirement or repurchase is consummated, if the same is consummated on or
before the day on which one-half of such calendar quarter has elapsed, and the
last day of the calendar quarter in which such redemption, retirement or
repurchase was consummated, if the same was consummated after the day on which
one-half of such calendar quarter has elapsed.
"Dollars" and "$": shall mean lawful money of the, United States of
------- -
America.
"Domestic Business Day": shall mean a day on which the Banks and the
---------------------
Borrower are customarily open, at their respective addresses specified herein,
for the purpose of conducting business.
"Effective Date" shall mean November 30, 2001. The effective
--------------
date of any amendment hereto shall be set forth in such amendment.
"ERISA": shall mean the Employee Retirement Income Security Act of
-----
1974, as amended.
"ERISA Affiliate" shall mean any corporation which is a member of the
---------------
same controlled group of corporations as the Borrower within the meaning of
section 414(b) of the Code, or any trade or business which is under common
control with the Borrower within the meaning of section 414(c) of the Code.
"Eurodollar Business Day": shall mean a Domestic Business Day on
-----------------------
which dealings are carried on in the London Interbank Eurodollar Market.
"Eurodollar Interest Period": shall mean, as to any Eurodollar Loan,
--------------------------
the period beginning on the Borrowing Date, Conversion Date or Extension Date,
as the case may be, for such Loan and ending one, two or three months (as the
Borrower shall request) after such Borrowing Date, Conversion Date or Extension
Date; provided, however, that if a Eurodollar Interest Period would otherwise
-------- -------
expire on a non-Eurodollar Business Day, such Eurodollar Interest Period shall
expire on the next succeeding Eurodollar Business Day unless such day falls in
another calendar month, in which case such Eurodollar Interest Period shall
expire on the next preceding Eurodollar Business Day; and provided, further,
-------- -------
that no Eurodollar Interest Period shall extend beyond the Final Maturity Date
or shall be of such duration as to require, after giving effect to all
Eurodollar Interest Periods then in effect, the Borrower to prepay any
Eurodollar Loan in order to make the scheduled amortization payments under any
Term Note.
"Eurodollar Loans" and "Eurodollar Loan": shall mean, respectively,
----------------
(i) any Loans during any period in which such Loans bear interest at a rate
based upon the Eurodollar Rate, and (ii) a single such Loan.
"Eurodollar Rate": shall mean, at the time any determination thereof
---------------
is to be made and for any Eurodollar Interest Period, the rate per annum
(rounded up to the nearest .05%) determined by the following definition of
Libor Rate. "Libor Rate" is the rate per annum at which the Agent is offered
deposits in Dollars by prime banks in the London Interbank Eurodollar Market as
of 11:00 a.m., London time, on the day which is two Eurodollar Business Days
prior to the beginning of such Eurodollar Interest Period, for delivery in
immediately available funds on the first day of such Eurodollar Interest
Period, in the amount of the Agent's share of proposed Loan and for a period
equal to such Eurodollar Interest Period.
"Eurodollar Reserve Requirement": shall mean the then maximum
------------------------------
effective rate per annum (expressed as a percentage) as determined by each Bank
of the reserve requirement, if any, imposed (pursuant to Regulation D) by the
Board of Governors of the Federal Reserve System on such Bank's "Eurocurrency
Liabilities" (as used in Regulation D). Without limiting the effect of the
foregoing, the Eurodollar Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks by reason of any Regulatory
Change against (i) any category of liabilities which includes deposits by
reference to which the Eurodollar Rate is to be determined as provided in the
definition of "Libor Rate" contained in the definition of "Eurodollar Rate" or
(ii) any category of extensions of credit or other assets which include
Eurodollar Loans.
"Event of Default": shall mean each of those events specified in
----------------
Section 8.1.
"Excluded Liabilities": shall mean indebtedness of any partnership
--------------------
or joint venture in which the Borrower or any of its Subsidiaries is a venturer
or partner.
"Existing Agreement": shall have the meaning assigned to it in
------------------
paragraph D of the Preliminary Statements to this Agreement.
"Extension": shall mean an extension of a Eurodollar Loan, as the
---------
case may be, pursuant to Section 1.7B.
"Extension Date": shall mean the date on which an Extension is, or
--------------
is to be, consummated, as the context may indicate.
"Fees": shall mean the Facility Fees, the Restructuring Fees, the
----
Renewal Fees, the Letter of Credit Fees, and any all other fees due and payable
by the Borrower to the Agent and/or the Banks under this Agreement.
"Final Maturity Date": shall mean the date on which the fourth and
-------------------
final installment of a Term Loan shall be due, as calculated pursuant to
Section 1.6 hereof.
"Friendly Acquisition": shall mean an Acquisition which is not
--------------------
opposed by the management of the Person whose securities or assets are to be
acquired.
"Funded Indebtedness": of any Person shall mean the Indebtedness
-------------------
evidenced by the Notes and all other Indebtedness which matures more than one
year from the date of its creation or matures within one year from such date
but is renewable or extendable, at the option of such Person, to a date more
than one year from such date or arises under a revolving credit or similar
agreement which obligates the lender or lenders to extend credit during a
period of more than one year from such date, excluding, however, all leases not
--------- -------
required under FASB 13 to be capitalized.
"GAAP": shall mean generally accepted accounting principles applied
----
on a basis consistent with those followed in the preparation of the financial
statements referred to in Section 6.1 unless otherwise indicated.
"Indebtedness": shall mean, as to the Borrower, all items of
------------
indebtedness which, in accordance with GAAP, would be included in determining
liabilities as shown on the liability side of a balance sheet of the Borrower
as of the date as of which indebtedness is to be determined and shall also
include all indebtedness and liabilities of others (other than the Borrower or
any of its Subsidiaries) assumed or guaranteed by the Borrower or in respect
of which the Borrower is secondarily or contingently liable (other than by
endorsement of instruments in the course of collection) whether by reason of
any agreement to acquire such indebtedness or to supply or advance sums or
otherwise, excluding, however, Contingent Liabilities and Excluded Liabilities.
--------- -------
"Intangibles": shall mean any intellectual properties, goodwill
-----------
(including any amounts, however designated, representing the cost of
acquisition of business and investments in excess of underlying tangible
assets), unamortized debt discount and expense, deferred research and
development costs and other assets treated as intangible assets under GAAP.
"Interest Coverage Ratio": for any fiscal quarter shall mean, as to
-----------------------
the Borrower, the sum of (i) the Borrower's Consolidated Net Income Before
Taxes for the four immediately preceding fiscal quarters, and (ii) the
Borrower's Consolidated Interest Expense for the four immediately preceding
fiscal quarters, divided by the Borrower's Consolidated Interest Expense for
the four immediately preceding fiscal quarters.
"Interest Rate": shall mean the rate or rates of interest determined
-------------
as provided in Section 1.7.
"Letter of Credit": shall have the meaning described in Section 1.14.
----------------
"Letters of Credit Expiration Date": shall have the meaning described
---------------------------------
in Section 1.14.
"Loans": shall mean the Revolving Loans and the Term Loan as both
-----
terms are herein defined in Sections 1.1 and 1.5, respectively.
"London Interbank Eurodollar Market": shall mean the London
----------------------------------
interbank market of Dollars for deposit.
"Majority Banks": shall mean, at the time any determination thereof
--------------
is to be made, (i) the holders of at least 65% of the aggregate unpaid
principal balance of the Notes and the aggregate amount of all outstanding
Letters of Credit or, if no Loans or Letters of Credit are at the time
outstanding, Banks whose Commitments aggregate at least 65% of the Total
Commitment, and (ii) the numeric majority of the Banks; provided, however,
-------- -------
in the case of a determination made by the Banks with respect to a Borrowing
pursuant to Section 2.1, the Majority Banks in such Borrowing shall mean Banks
which would make 65% of the aggregate principal amount of the Loans in such
Borrowing if such Borrowing were made as requested by the Borrower in the
Notice to the Agent requesting such Borrowing.
"Margin Stock": shall have the meaning assigned to it in Regulation
------------
U of the Board of Governors of the Federal Reserve System.
"Matson": shall mean the Borrower's Subsidiary, Xxxxxx Navigation
------
Company, Inc., a Hawaii corporation, and the subsidiaries of Xxxxxx Navigation
Company, Inc..
"Maturity Date": shall mean, when used with reference to any
-------------
outstanding or requested Borrowing, a date on or before the Final Maturity
Date, as selected by the Borrower pursuant to Section 1.10, on which a
Eurodollar Interest Period shall expire.
"Multiemployer Plan" shall mean any Plan which is a "multiemployer
------------------
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Nonordinary Dividends": shall mean dividends paid out of net income
---------------------
from transactions not in the ordinary course of business. Net income from
sales of assets of the Borrower's property management and development
activities shall be deemed net income from transactions in the ordinary course
of business.
"Normal Year": shall mean any fiscal year of the Borrower in which
-----------
its consolidated net income (excluding cumulative effects of accounting changes
and excluding consolidated net income derived from transactions not in the
ordinary course of business) is $20,000,000 or more and in which actual
Consolidated Tangible Net Worth is equal to or greater than Consolidated
Tangible Net Worth then permitted under Section 7.1A(i).
"Note" or "Notes": shall mean in the singular, a Revolving Credit
---- -----
Note or a Term Note, and in the plural, the Revolving Credit Notes and the Term
Notes as both terms are herein defined in Sections 1.2 and 1.6, respectively.
"Notice": shall mean a notice given by telex, facsimile, telegram or
------
telecopier, or by telephone by an authorized representative of the Borrower
(confirmed in writing promptly thereafter), which notice if from the Borrower,
is given at a time (or on a day) prior to 9:30 a.m., Hawaii Standard Time, on
the day such Notice is required or permitted.
"Obligations": shall mean and include all loans, advances, debits,
-----------
liabilities, obligations, letters of credit or acceptance transactions, trust
receipt transactions, or any other financial accommodations, howsoever arising,
owing by the Borrower to the Banks, of every kind and description (whether or
not evidenced by any note or other instrument), direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter in all cases
arising pursuant to the terms of this Agreement and the Notes, including,
without limitation, all interest, fees, charges, expenses, attorneys' fees and
accountants' fees chargeable to the Borrower pursuant to Section 6.5 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
----
successor or replacement entity thereto under ERISA.
"Person": shall mean any natural person, corporation, firm,
------
association, government, governmental agency or any other entity and whether
acting in an individual, fiduciary or other capacity.
"Plan": shall mean any employee pension benefit plan subject to
----
Title IV of ERISA and maintained by the Borrower, any of its Subsidiaries, or
any member of a Controlled Group, or any such plan, to which the Borrower, any
of its Subsidiaries or any member of a Controlled Group is required to
contribute on behalf of any of its employees.
"Prime Loans" and "Prime Loan": shall mean respectively, (i) any
----------- ----------
Loans during any period in which such Loans bear interest at a rate based upon
the Prime Rate, and (ii) a single such Loan.
"Prime Rate": shall mean the higher of (i) the federal funds rate
----------
for borrowings by national banks as determined by the Agent plus one-half of
one percent (1/2%) or (ii) the lending rate of interest per annum announced
publicly by First Hawaiian Bank from time to time as its "Prime Interest Rate",
which rate shall not necessarily be the best or the lowest rate charged by
First Hawaiian Bank from time to time. In the event that any time or times the
prime interest rate is discontinued and replaced by First Hawaiian Bank by a
comparable rate (hereinafter called the "Comparable Rate"), then for purposes
hereof, the Comparable Rate shall be substituted in place of the discontinued
rate; provided, however that if there is no replacement of the discontinued
rate by a Comparable Rate, then the discontinued rate shall be replaced by the
primary index rate from time to time established by First Hawaiian Bank for the
guidance of its lending officers in pricing commercial loans.
"Proportional Share": shall mean, at the time any determination
------------------
thereof is to be made, and when used with reference to any Bank and any
Borrowing, an amount equal to the product obtained by multiplying the amount of
such Borrowing by the following fraction:
Such Bank's then unused Commitment
----------------------------------
The then unused Total Commitment.
"Publicly Traded Securities": shall have the meaning assigned to it
--------------------------
in Section 220.7(a) of Regulation T of the Board of Governors of the Federal
Reserve System.
"Regulation D": shall mean Regulation D promulgated by the Board of
------------
Governors of the Federal Reserve System.
"Regulatory Change": shall mean, with respect to any Bank, any
-----------------
change an or after the date of this Agreement in United States federal, state
or foreign laws or regulations (including Regulation D) or the adoption or
making on or after such date of any interpretations, directives or requests
applying to a class of banks including such Bank of or under any United States
federal or state, or any foreign, laws or regulations (whether or not having
the force of law) by any court or governmental or monetary authority charged
with the interpretation or administration thereof.
"Regulatory Requirement": shall mean any of the following: any
----------------------
change in, or enactment of, any applicable (i) law or governmental regulation,
or (ii) governmental requirement, rule, guideline or order, or (iii)
governmental or judicial interpretation of any of the foregoing.
"Reportable Condition": shall mean any internal control matter which
--------------------
is required to be reported by the Borrower's independent auditor to the Audit
Committee of the Board of Directors of the Borrower in accordance with
Generally Accepted Auditing Standards.
"Reportable Event": shall mean a reportable event as defined in
----------------
Title IV of ERISA, except actions of general applicability by the Secretary of
Labor under Section 110 of ERISA.
"Restricted Payments": shall have the meaning specified in
-------------------
Section 7.8A.
"Significant Subsidiary": shall mean any Subsidiary of the Borrower,
----------------------
other than XxXxxxx Sugar Company, Ltd., the net worth of which constitutes 5%
or more of the Consolidated Tangible Net Worth of the Borrower.
"Subsidiary": shall mean, as to the Borrower, any other company,
----------
whether operating as a corporation, joint venture, partnership, limited
liability company or other entity, which is consolidated with the Borrower in
accordance with GAAP.
"Taxes": shall mean taxes, levies, imposts, duties or other charges
-----
of whatsoever nature imposed by any government or any political subdivision or
taxing authority thereof, other than any such charges on or measured by the net
income, net worth or shareholders, capital of a Bank pursuant to the income tax
laws of the jurisdiction where such Bank's principal or lending office is
located.
"Termination Date": shall mean November 30, 2004, or the Date to
----------------
which such date is extended from time to time as provided in Section 1.1B
hereof.
"Transferred Assets": shall have the meaning assigned to it in
------------------
paragraph B of the Preliminary Statements to this Agreement.
"Unmatured Event of Default": shall mean an event, act or occurrence
--------------------------
which with the giving of notice or the lapse of time, or with both thereof,
would become an Event of Default, other than Events of Default described in
Section 8.1D.
Section 9.2 Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
4.5 hereof, and all financial data submitted pursuant to this Agreement shall
be prepared in accordance with such principles.
ARTICLE X - PARTICIPATIONS; SETOFFS
-----------------------------------
Each Bank may sell participations in all or any part of any Loan or
Loans made by it to another bank or other entity without the consent of any
other party hereto, in which event the participant shall not have the rights
under this Agreement or such Bank's Note (the participant's rights against such
Bank in respect of such participation to be those set forth in the agreement
executed by such Bank in favor of the participant relating thereto) and all
amounts payable by the Borrower under Articles I and II hereof shall be
determined as if such Bank had not sold such participation. In addition, each
Bank shall have the right at any time to sell, assign, transfer, or negotiate
all or part of the Obligations of the Borrower outstanding under this Agreement
or its Notes evidencing such Obligations to such Bank, and the Borrower hereby
acknowledge and agree that any such disposition will give rise to a direct
obligation of the Borrower to the assignee and the assignee shall for all
purposes, where relevant, hereof be considered to be a Bank; provided, however,
-------- -------
that no assignment with respect to Loans maturing more than 180 days after the
date of such assignment shall be effective without the prior written consent of
the Borrower, which consent shall not be unreasonably withheld; and provided
--------
further that, with respect to assignments of Loans maturing 180 days or less
-------
after the date of such assignment undertaken without the consent of the
Borrower, all amounts payable by the Borrower under Articles I and II shall be
determined as though such assignment had not occurred. The Borrower hereby
authorizes each such assignee, each Bank and each participant in case of
default by the Borrower hereunder to proceed directly by right of setoff,
banker's lien or otherwise against any assets of the Borrower which may at the
time of such default be in the hands of such Bank or such participant to the
full extent of its interest in the Obligations.
ARTICLE XI - RIGHTS AND DUTIES OF THE AGENT AND THE BANKS
---------------------------------------------------------
Section 11.1 Obligations Several. The obligations of the Banks
-------------------
hereunder shall be several and the failure of one Bank to perform hereunder
shall not relieve any other Bank from such other Bank's obligation to perform,
nor shall such other Bank be required to increase its obligation hereunder.
Section 11.2 Appointment and Duties of Agent; Agent's Fee. The
--------------------------------------------
parties hereto agree that First Hawaiian Bank, a Hawaii corporation shall act,
subject to the terms and conditions of this Article XI, as the Agent for the
Banks, and to the extent set forth herein each of the Banks hereby irrevocably
appoints, authorizes, empowers and directs the Agent to take such action on its
behalf and to exercise such powers as are specifically delegated to the Agent
herein in connection with the administration and enforcement of any rights or
remedies with respect to this Agreement and the Notes. The general
administration of the Loans and Letters of Credit hereunder shall be with the
Agent. It is expressly understood and agreed that the obligations of the Agent
hereunder are only those expressly set forth in this Agreement. The Agent
shall use reasonable diligence to examine the face of each document received by
it hereunder to determine whether such document, on its face, appears to be
what it purports to be. However, the Agent shall not be under any duty to
examine into or pass upon the validity or genuineness of any documents received
by it hereunder and the Agent shall be entitled to assume that any of the same
which appears regular on its face is genuine and valid and what it purports to
be.
In consideration of the Agent's assumption of the duties and
obligations as Agent hereunder, the Borrower shall pay to the Agent an Agent's
Fee to be agreed to by and between the Borrower and the Agent. The Agent's Fee
shall be for the benefit of and payable to the Agent only and shall not be
shared with any of the Banks.
Section 11.3 Discretion and Liability of Agent. Subject to Sections
---------------------------------
11.4 and 11.6 hereof, the Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it under this Agreement or otherwise, or with respect to taking or
refraining from taking any action or actions which it may be able to take under
this Agreement. Neither the Agent nor any of its directors, officers,
employees, agents or representatives shall be liable to any Bank for any action
taken or omitted by them hereunder or in connection herewith, except for its or
their own gross negligence or willful misconduct. The Agent shall incur no
liability under, or in respect of, this Agreement, by acting upon a notice,
certificate, warranty or other paper or instrument believed by it to be genuine
or authentic or to be signed by the proper party or parties, or with respect to
anything which it may do or refrain from doing in the reasonable exercise of
its judgment, or which may seem to it to be necessary or desirable in the
premises.
Section 11.4 Event of Default. The Agent shall be entitled to
----------------
assume that no Event of Default or Unmatured Event of Default, or both, has
occurred and is continuing, unless the Agent has actual knowledge of such facts
or has received notice from a Bank in writing that such Bank considers that an
Event of Default or an Unmatured Event of Default has occurred and is
continuing and which specifies the nature thereof.
In the event that the Agent shall acquire actual knowledge of any
Event of Default or Unmatured Event of Default or both, the Agent shall
promptly notify (either orally or in writing) the Banks of such Event of
Default or Unmatured Event of Default and may, or if requested in writing by
the Majority Banks shall, take such action and assert such rights as are
contemplated under this Agreement. The Agent shall be indemnified pro rata by
the Banks against any liability or expenses, including reasonable counsel fees,
incurred in connection with taking such action.
Section 11.5 Consultation. The Agent in good faith may consult with
------------
legal counsel or an accountant selected by it and shall be entitled to rely
fully upon any opinion of such counsel or accountant in connection with any
action taken or suffered by Agent in accordance with such opinion.
Section 11.6 Communications to and from Agent. Whenever any notice,
--------------------------------
approval, consent, waiver, or other communication or action is required or may
be delivered by the Banks hereunder, action by the Agent shall be effective for
all purposes hereunder; provided, that upon any occasion requiring or
--------
permitting an approval, consent, waiver, election or other action on the part
of the Banks, unless action by the Agent alone is expressly permitted
hereunder, action shall be taken by the Agent for and on behalf or for the
benefit of all the Banks upon the direction of the Majority Banks or all of
the Banks, as applicable. The Borrower may rely on any communication from the
Agent hereunder and need not inquire into the propriety of or authorization for
such communication. Upon receipt by the Agent from the Borrower or any Bank of
any communication calling for an action on the part of the Banks, the Agent
will, in turn, promptly inform the other Banks in writing of the nature of such
communication.
Section 11.7 Limitations of Agency. Notwithstanding anything in
---------------------
this Agreement or any of the other related documents, expressed or implied, it
is agreed by the parties hereto that the Agent will act hereunder and under the
related documents as Agent solely for the Banks and only to the extent
specifically set forth herein, and will, under no circumstances, be considered
to be an agent or fiduciary of any nature whatsoever in respect of any other
Person. The Agent may generally engage in any kind of banking or trust
business with the Borrower as if it were not the Agent and shall include its
own pro rata share of the Total Commitment in all calculations hereunder, with
respect to which pro rata share it may act or omit to act as if it were not the
Agent.
Section 11.8 No Representation or Warranty. No Bank (including the
-----------------------------
Agent) makes to any other Bank any representation or any warranty, express or
implied, or assumes any responsibility with respect to the Loans or the
execution, construction or enforceability of this Agreement, the Notes or any
instrument or agreement executed by the Borrower or any other Person in
connection herewith.
Section 11.9 Bank Credit Decision. Each Bank acknowledges that it
--------------------
has, independent of and without reliance upon any other Bank (including the
Agent) or any information provided by any other Bank (including the Agent) and
based on the financial statements of the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will, independent of and without reliance upon any other Bank (including the
Agent) and based on such documents and information as it shall deem appropriate
at that time, continue to make its own credit decisions in taking or not taking
action under this Agreement and any other documents relating hereto.
Section 11.10 Indemnity. Notwithstanding any of the provisions
---------
hereof, the Banks (up to the amount of their respective Commitments) shall
severally indemnify the Agent against loss, cost, liability, damage or expense,
including attorneys' fees, arising from or in connection with its duties as
Agent hereunder and not caused by its gross negligence or willful misconduct,
to the extent the Agent does not recover such losses, costs, liabilities,
damages or expenses from the Borrower.
Section 11.11 Resignation. The Agent may resign as such at any time
-----------
upon at least thirty (30) days' prior notice to the Borrower and the Banks,
provided that such resignation shall not take effect until a successor agent
has been appointed. In the event of such resignation, the Majority Banks
shall, as promptly as practicable, appoint a successor agent, and if they fail
to do so within thirty (30) days after such notice the Agent may appoint a
successor agent.
Section 11.12 Note Holders. The Agent may treat the payee of any
------------
Note as the holder thereof until written notice of transfer shall have been
filed with the Agent signed by such payee and in form satisfactory to the
Agent.
Section 11.13 Co-Agent. The Bank identified on the facing page or
--------
signature pages of this Agreement as a "co-agent" shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Banks as such. Without limiting the foregoing,
the Bank so identified as a "co-agent" shall not have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on the Bank so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
ARTICLE XII - MISCELLANEOUS
---------------------------
Section 12.1 Entire Agreement. This Agreement with the Schedule and
----------------
Exhibits attached hereto embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and under-
standings relating to the subject matter hereof.
Section 12.2 No Waiver. No failure to exercise, and no delay in
---------
exercising, any right, power or remedy hereunder or under any document
delivered pursuant hereto shall impair any right, power or remedy which the
Banks or the Borrower may have, nor shall any such delay be construed to be a
waiver of any of such rights, powers or remedies, or an acquiescence in any
breach or default under this Agreement of any document delivered pursuant
hereto, nor shall any waiver by the Banks or the Borrower, respectively, of any
breach or default of the Borrower or the Banks, respectively, hereunder be
deemed a waiver of any default or breach subsequently occurring. The rights
and remedies herein specified are cumulative and not exclusive of any rights or
remedies which the Banks or the Borrower would otherwise have.
Section 12.3 Survival. All representations, warranties and
--------
agreements herein contained on the part of the Borrower and the Banks shall
survive the making of the Loans hereunder and all such representations,
warranties and agreements shall be effective as long as any Obligation arising
pursuant to the terms of this Agreement remains unpaid.
Section 12.4 Notices. All Notices, requests, consents and demands
-------
hereunder shall be effective when duly deposited in the mails, postage prepaid,
or delivered by telegraph or transmitted by telex, facsimile or telecopier,
addressed to the respective party at the address set forth below, except that
Notices to the Agent pursuant to Article I shall not be effective until
received.
Borrower: Alexander & Xxxxxxx, Inc.
-------- 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Agent: First Hawaiian Bank
----- Main Banking Center
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Banks: At the addresses indicated on the
--------- signature pages below or, if modified, on the
signature pages of any amendment or supplement
hereto.
Any of the above may change such address by Notice in writing given to the
other parties to this Agreement.
Section 12.5 Termination. This Agreement shall terminate when all
-----------
Obligations of the Borrower incurred hereunder shall have been discharged in
full.
Section 12.6 Separability of Provisions. In case any one or more of
--------------------------
the provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 12.7 Successors and Assigns. This Agreement shall be
----------------------
binding upon and inure to the benefit of the Borrower, the Banks and their
respective successors and assigns; provided, that the Borrower may not transfer
its rights to borrow under this Agreement without prior written consent of the
Banks.
Section 12.8 Counterparts. This Agreement may be executed in any
------------
number of counterparts, all of which taken together shall constitute one
agreement, and any party hereto may execute this Agreement by signing any such
counterpart.
Section 12.9 Choice of Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Hawaii.
Section 12.10 Amendment and Waiver. No provision, of this Agreement
--------------------
or the Notes may be amended, modified, supplement, changed, waived, discharged
or terminated, unless the Majority Banks and the Borrower consent thereto in
writing; provided, however, that no such amendment, modification, supplement or
-------- -------
change shall modify any of the provisions of this Agreement or the Notes with
respect to an Event of Default or the amount of or time for the payment of the
principal of and interest on the Notes, or reduce the percentage of Banks
required to comprise the "Majority Banks," without the consent of the holders
of all the Notes then outstanding, or, if no Notes are at the time outstanding,
all of the Banks.
Section 12.11 Indemnification by the Borrower. The Borrower agrees,
-------------------------------
whether or not any Acquisition is consummated, to indemnify, pay and hold the
Agent, each Bank, and the officers, directors, employees and agents of the
Agent and the Banks, harmless from and against any and all claims, liabilities,
losses, damages, costs and expenses, including, without limitation, reasonable
attorneys' fees, arising out of or connected in any way with any Acquisition or
proposed Acquisition, including, without limitation, any liabilities arising
out of or connected in any way with violations, alleged or actual, of any state
or federal securities laws applicable to any Acquisition or proposed
Acquisition (collectively, the "Indemnified Liabilities"), provided that the
Borrower shall have no obligation hereunder with respect to Indemnified
Liabilities to the extent the same arise from the gross negligence or willful
misconduct of any such indemnified Persons.
If any claim is made, or any action, suit or proceeding is brought,
against any Person indemnified pursuant to this Section 12.11, the indemnified
Person shall notify the Borrower of such claim or of the commencement of such
action, suit or proceeding, and the Borrower will, if so requested by the
indemnified Person, assume the defense of such action, suit or proceeding,
employ counsel reasonably satisfactory to the indemnified Person and pay the
fees and expenses of such counsel.
The Obligations of the Borrower under this Section 12.11 shall
survive the payment of the Loans and the cancellation of the Notes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
CERTIFICATE OF FIRST HAWAIIAN BANK
AS AGENT
This certificate is delivered pursuant to the provisions of Section 3.3 of
the Third Amended and Restated Revolving Credit and Term Loan Agreement
effective as of November 30, 2001, between Alexander & Xxxxxxx, Inc. (the
"Borrower"), First Hawaiian Bank, Bank of America N.A., Bank of Hawaii, The
Bank of New York, Well Fargo Bank, National Association, and American Savings
Bank, F.S.B. (the "Banks"), and First Hawaiian Bank, as agent for the Banks
("Agent"). On behalf of the Banks, the Agent hereby certifies to the Borrower
that (i) the conditions specified in Section 3.2 of the Agreement have been
satisfied, (ii) the Agreement is therefore effective as of November 30, 2001,
and (iii) the Borrower need take no further action to satisfy any of the
conditions specified in Section 3.2 as a condition to any Borrowing, except
that on or before delivery by the Borrower to the Agent of each Notice of
Borrower pursuant to Section 1.10 of the Agreement there shall be delivered to
the Agent a duly certified copy of a resolution of the Board of the Borrower
approving such Borrowing, provided that no such certificate shall be required
as to a Borrowing which is a refinancing of a Eurodollar Loan.
Dated: November 30, 2001
FIRST HAWAIIAN BANK,
as Agent
By /s/ Xxxxx X. Xxxxxxxx
---------------------------
Its Vice President
FIRST HAWAIIAN BANK,
individually and as Agent
Main Banking Center
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Att'n: Xx. Xxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxxx X. Xxxxxxxx
---------------------------
Its Vice President
BANK OF AMERICA, N.A.
WA1-501-35-01
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Att'n: Xx. Xxxxx Xxxxxxxxxx
Senior Vice President, Commercial Banking
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxxx Xxxxxxxxxx
---------------------------
Its Senior Vice President
BANK OF HAWAII
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Att'n: Xx. Xxxx-Xxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxx Xxxxxxx
--------------------------
Its Vice President
THE BANK OF NEW YORK
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Att'n: Xx. Xxxxxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxxxxxx Xxxxxxxx
--------------------------
Its Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
420 Montgomery MAC A0101-096
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxx X'Xxxxxxxx
Relationship Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxxxx X'Xxxxxxxx
--------------------------
Its Relationship Manager
AMERICAN SAVINGS BANK, F. S. B.
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxx X. Xxxxxx
--------------------------
Its Vice President
SCHEDULE I
Commitment
----------
First Hawaiian Bank $ 45,000,000
Bank of America, N.A. 40,000,000
Xxxxx Fargo Bank, National Association 40,000,000
Bank of Hawaii 30,000,000
The Bank of New York 20,000,000
American Savings Bank, F. S. B. 10,000,000
------------
$185,000,000
EXHIBIT A
REVOLVING CREDIT NOTE
$__________________ Honolulu, Hawaii
___________________, ______
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of _______________________________ (the "Payee") at the offices of First
Hawaiian Bank, a Hawaii Corporation located at 000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx, 00000, the principal sum of ____________________________ DOLLARS
($_____________), on the Termination Date (as defined in the Agreement referred
to below) in lawful money of the United States of America and
in immediately available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
__________________, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By ____________________________
Its ______________________
By ____________________________
Its ______________________
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
EXHIBIT B
TERM NOTE
$___________________ Honolulu, Hawaii
_______________, ________
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), for value received, hereby promises to pay to the order
of ________________________(the "Payee") at the offices of FIRST HAWAIIAN BANK,
a Hawaii corporation, located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx, 00000,
the principal sum of _______________________ Dollars ($____________), in lawful
money of the United States of America and in immediately available funds, in
four consecutive substantially equal quarterly installments of $_____________,
which installments shall be payable on the last Business Day of September,
December, March and June, commencing _____________, ______; provided, however,
that the last such installment shall be in an amount sufficient to repay in
full the unpaid principal amount; and to pay interest from the date hereof on
said principal sum, or the unpaid balance thereof, in like money and funds,
at said office, at the rates per annum which shall be determined in accordance
with the provisions of Articles I and II of the Agreement referred to below,
said interest to be payable at the times provided for in the Agreement.
This Note is one of the Term Notes referred to in the Third Amended
and Restated Revolving Credit and Term Loan Agreement (the "Agreement")
effective as of ________________, among the Borrower, the Payee, and the other
banks party thereto, and is entitled to all the benefits provided therein.
Reference is made to said Agreement for the rights and obligations of the
Borrower, the Payee (as one of the "Banks" defined therein), and First Hawaiian
Bank, as Agent, with regard to this Note.
This Note is subject to prepayment, in whole or in part, as specified
in the Agreement. In case an Event of Default, as defined in the Agreement,
shall occur and shall be continuing, the principal of and accrued interest on
this Note may become due and payable in the manner and with the effect provided
in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By ____________________________
Its ______________________
By ____________________________
Its ______________________
EXHIBIT C
CERTIFICATE OF FIRST HAWAIIAN BANK
AS AGENT
This certificate is delivered pursuant to the provisions of Section 3.3 of
the Third Amended and Restated Revolving Credit and Term Loan Agreement
effective as of _______________, between Alexander & Xxxxxxx, Inc. (the
"Borrower"), First Hawaiian Bank, Bank of America N.A., Bank of Hawaii, The
Bank of New York, Well Fargo Bank, National Association, and American Savings
Bank, F.S.B. (the "Banks"), and First Hawaiian Bank, as agent for the Banks
("Agent"). On behalf of the Banks, the Agent hereby certifies to the Borrower
that (i) the conditions specified in Section 3.2 of the Agreement have been
satisfied, (ii) the Agreement is therefore effective as of _________________,
and (iii) the Borrower need take no further action to satisfy any of the
conditions specified in Section 3.2 as a condition to any Borrowing, except
that on or before delivery by the Borrower to the Agent of each Notice of
Borrower pursuant to Section 1.10 of the Agreement there shall be delivered
to the Agent a duly certified copy of a resolution of the Board of the Borrower
approving such Borrowing, provided that no such certificate shall be required
as to a Borrowing which is a refinancing of a Eurodollar Loan.
Dated: _______________________.
FIRST HAWAIIAN BANK,
as Agent
By ___________________________
Its Vice President
EXHIBIT D
LETTER OF CREDIT APPLICATION FORM
BANK USE ONLY
L/C No. ______
FIRST HAWAIIAN BANK
APPLICATION AND AGREEMENT FOR
STANDBY LETTER OF CREDIT
To: First Hawaiian Bank
_______________ Branch
_______________, Hawaii Date __________________
Please issue an Irrevocable Standby Letter of Credit on substantially the same
terms and conditions as shown in this application for delivery to the
beneficiary by:
/ / Airmail / / Airmail with short preliminary cable advice / / Full Cable
/ / Courier / / Other
______________________________________________________________________________
|
ADVISING BANK | FOR ACCOUNT OF (APPLICANT)
(If Blank, Correspondent Bank) |
|
|
|
|
_____________________________________|________________________________________
IN FAVOR OF (BENEFICIARY) | AMOUNT
|
|
|
|_________________________________________
| EXPIRY DATE AND PLACE
| FOR PRESENTATION
|
| Date
| Automatic Extension: / /Yes / / No
| Place: FHB's International Banking
| offices, Honolulu, unless
| otherwise specified.
______________________________________________________________________________
Available for payment by presentation of draft(s) at sight drawn on you or your
correspondent.
Please issue the Letter of Credit as per attached.
FEES:
Issuing Fee $____ Initial Standby Fee at the rate of __% per annum (360 days
per year).
Minimum $___________/Year
(Subject to adjustment in the event of extension or increase.)
Payment Fee ___________%, or minimum $___________, whichever is greater. Plus
other applicable fees (telex, courier, fax, etc.)
Partial Drawings PERMITTED unless otherwise stated
By signing below, applicant acknowledges that applicant has read and agrees to
all of the above terms and conditions and the Agreement Governing Standby
Letter of Credit on the reverse side.
The applicant authorizes Bank to charge applicant's checking account number
_________ maintained by the applicant with Bank at its _____________ Branch,
for any and all amounts due from applicant to Bank under this Agreement. In
the event said checking account does not have sufficient funds to reimburse
Bank for the amounts due hereunder, the applicant will pay such amounts on
demand, as specified in this Agreement. This authorization will remain in full
force and effect until revoked by the applicant in writing. However, any such
revocation by the applicant shall not affect or impair Bank's rights and
remedies set forth in this Agreement.
________________________________ ____________________________________
Date Authorized Signature Title
________________________________ ____________________________________
Applicant - Firm Name Authorized Signature Title
_______________________________________________________________________________
BANK USE ONLY
_______________________________________________________________________________
|
Outstanding Balance _______ | The Letter of Credit is approved under one of
| the following:
| / / Executive Committee / / BLAD Authority
Amount Requested __________ | / / My Lending Authority / / Credit Committee
| / / Other _______________
TOTAL ___________ |
|
| Under Line of Credit No. ___________
| Applicant's Obligor No. ____________
|
Security __________________ | Type: / / Financial / / Performance
|
| Grade ____ Approved By _______________
_____________________________|_________________________________________________
AGREEMENT GOVERNING STANDBY LETTERS OF CREDIT
First Hawaiian Bank (herein called "Bank") and the applicant(s)
(herein called the "applicant") for Standby Letter of Credit (herein called the
"Credit") agrees as set forth on the application as follows:
1. As to drafts or other requests for payment drawn under or
purporting to be drawn under the Credit, the applicant will reimburse, or pay
in advance to Bank in U.S. currency at Bank's election and on demand, the
amount paid on or required to pay each sight draft payable in U.S. currency,
and as to such drafts payable in other than U.S. currency, to reimburse Bank,
on demand, the equivalent of the amount paid (plus cable charges) in U.S.
currency at the current rate of exchange in Hawaii for cable transfers, to the
place of payment in the currency in which such draft is drawn. If there is a
note executed by the applicant in connection herewith, the note evidences the
debt due hereunder.
2. The applicant will pay Bank all fees specified on the
application and/or in a separate agreement.
3. As security for the payment of all obligations and indebtedness
of the applicant to Bank, now or hereafter existing under this Agreement, the
applicant hereby (a) pledges to Bank and/or gives Bank a general lien upon
and/or right of set-off against all right, title, and interest of the applicant
in and to the balance of every deposit account now or at any time hereafter
existing, of the applicant with Bank, and any other claims of applicant against
Bank, and in and to all property, claims, and demands and rights and interests
therein of the applicant, and in and to all evidences thereof, which have been
or at any time shall be delivered to or otherwise come into Bank's possession,
custody or control, or into the possession, custody or control of any of its
agents or correspondents for any purpose, whether or not for the express
purpose of being used by Bank as collateral security or for safekeeping or for
any other or different purposes, it being understood that the receipt at any
time by Bank, or any of its correspondents, of other security, of whatever
nature, including cash, shall not be deemed a waiver of any of Bank's rights or
powers under this Agreement, (b) if any party shall have joined in the
application for the Credit, assigns and transfers to Bank all right, title, and
interest of the applicant in and to all property and interests which the
applicant may now or hereafter obtain from such party as security for the
obligations of such party arising in connection with the transaction to which
the Credit relates; and (c) agrees at any time and from time to time, on
demand, to deliver, convey transfer, or assign to Bank additional security of
value and character satisfactory to Bank, or to make such payment as Bank may
require.
4. Upon demand by Bank, applicant will execute and deliver to Bank
all documents concerning security to be given or granted Bank, all in form and
content applicable to Bank and shall pay Bank all applicable filing fees
therefor.
5. Until and except as the applicant shall instruct Bank in writing
to the contrary, Bank and its correspondents may, but shall have no obligation
to, under the Credit, (a) receive and accept and pay drafts or other documents
and instruments otherwise in order signed by, or issued to, the receiver,
successor in interest, trustee in bankruptcy, personal representative,
administrator, guardian or conservator of anyone named in the Credit as the
person to whom drafts and other documents and instruments are to be drawn or
issued; and (b) honor drafts for partial payments whether or not made in any
designated amount or period of time, provided that the liability of the
applicant to reimburse Bank shall not exceed the amount to the Credit plus all
applicable charges, expenses, and interest.
6. The users of the Credit shall be deemed agents of the applicant.
Neither Bank nor Bank's correspondents shall have any liability or
responsibility for tile correctness, validity, genuineness, sufficiency, or
falsification of any documents or instruments, or for any delay in giving or
failure to give notice, or for failure of any person to comply with the terms
of the Credit, or for errors, omissions, delays in or nondelivery of any
message, however sent, or for any other error, neglect, or omission if done in
good faith, and any action taken in good faith by Bank and Bank's
correspondents shall be binding on the applicant.
7. Any and all payments made to Bank hereunder shall be made free
and clear of and without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on net income and all income and franchise
taxes of the United States and any political subdivisions thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings, and
liabilities being hereinafter called "Taxes"). If the applicant shall be
required by law to deduct any taxes from or in respect of any sum payable
hereunder, (a) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this section 7) Bank shall receive an amount
equal to tile sum Bank would have received had no such deductions been made;
(b) the applicant shall make such deductions; and (c) the applicant shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law. The applicant will indemnify Bank for the
full amount of Taxes (including, without limitation, any Taxes imposed by any
jurisdiction on amounts payable under this section 7) paid by Bank and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto, whether or not such Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date Bank
makes written demand therefor. Within 30 days after the date of any payment of
Taxes, the applicant will furnish to Bank the original or a certified copy of a
receipt evidencing payment thereof.
8. Any property of the applicant of whatever kind or character now
or hereafter in Bank's possession or under Bank's control is security for the
payment and performance of all of the applicant's indebtedness and obligations
to Bank and may, without notice to the applicant, be applied to the same by
Bank, and applicant will, upon demand, execute and deliver to Bank a security
agreement in Bank's regular form. Should the applicant default in payment or
performance of any of the terms hereof or of the Credit or any other agreements
with Bank, or discontinue its present business, become incompetent or
insolvent, die, institute any proceedings seeking to adjudicate the applicant
as bankrupt or insolvent, make an assignment for the benefit of creditors or
become the subject of any receivership or other proceedings under the
bankruptcy laws, or give any materially false information to, or withhold any
essential financial information from Bank, or should the property, goods,
documents, and instruments referred to in section 3 of this Agreement be
attached, seized, impounded, or become subject to any other legal process or
order, then upon the happening of any such events, Bank without the necessity
of any notice, demand, or protest to or upon the applicant or any other person,
may do any or all of the following: (a) declare all indebtedness owing from the
applicant to Bank immediately due and payable; (b) take possession of the
property, goods, documents, and instruments or any part thereof, and do all
such acts affecting the same as Bank may deem necessary to conserve the same
and its security interest therein; (c) apply all property of the applicant to
said indebtedness; (d) set off and apply all deposits at any time held or other
indebtedness at any time owing by Bank to or for the credit or the account of
the applicant against any amounts owing by the applicant to Bank; (e) take
possession of the property, goods, documents, and instruments, or any part
thereof, with or without process of law, and sell and dispose of the same at
public or private sale; and (f) exercise all rights under the Uniform
Commercial Code, Chapter 490, Hawaii Revised Statutes, or any other applicable
law. To the extent notice of sale shall be required by law, reasonable notice
shall include, but shall not be limited to, written notice to the applicant at
the address shown on the reverse hereof at least five business
days prior to the date of sale. Bank may purchase at such sale free from any
right of redemption, which the applicant hereby waive(s) and release(s). Bank
in conducting such sale may act through an agent, its attorney, or any of its
officers. The applicant will pay Bank all expenses of taking possession,
storing, transporting, conditioning, sale and collection, including reasonable
attorneys' fees, and Bank may deduct the same from the proceeds of any sale
before crediting the balance, if any, to the indebtedness of the applicant.
Upon demand, the applicant will pay to Bank any deficiency, and Bank will pay
to the applicant any surplus remaining after the application of the proceeds of
the sale. The provisions of any separate agreement concerning security shall,
if inconsistent herewith, control and govern Bank's rights in respect thereby.
9. (a) Each remedy of Bank herein provided is cumulative, not
alternative and in addition to all other remedies provided by law, and no
waiver by Bank of any term or condition hereof or breach hereunder shall be
deemed a waive of any other term, condition, or subsequent breach; (b) all
payments, remittances, deliveries of documents and instruments, and notices to
Bank shall be made and delivered (unless otherwise specified herein) to the
office of Bank shown on the reverse hereof; (c) this Agreement shall inure to
the benefit of Bank's successors and assigns, and shall be binding upon the
heirs, personal representatives, guardians, conservators, and trustees of the
applicant; (d) if the applicant is more than one person, the liability of each
applicant shall be joint and several.
10. Without releasing the applicant from any liability hereunder and
under the Credit, Bank may make such changes from the terms set forth herein as
Bank, in its sole discretion, may deem advisable, provided that no such changes
shall vary the principal terms hereof (amount, expiry); however, Bank may, at
the applicant's request, which may be signified by signing or initialing such
change(s), vary or modify principal terms as described herein. Further, Bank
may surrender, from time to time, to the person designated by the applicant (or
their nominees) all or any part of any property, goods, documents, and
instruments against payments by, or other documents or instruments satisfactory
to Bank executed by such persons.
11. The applicant will comply with all foreign and U.S. laws, rules
and regulations (including exchange and control regulations) now or hereafter
applicable to the transaction related to the Credit or applicable to the
execution, delivery, and performance by the applicant of this Agreement.
12. This Agreement shall be construed and enforced in accordance
with the International Standby Practices (the "ISP") as most recently published
by the International Chamber of Commerce (ICC Publication 590) and in
accordance with the laws of the State of Hawaii, U.S.A. The ISP shall govern in
the event of any inconsistency.
13. If Bank extends to applicant (or any other party liable
hereunder) a loan or other credit which in whole or in part is intended to (or
does) satisfy the obligations of the applicant hereunder (or of any other party
liable hereunder), the rights of Bank hereunder shall continue until both full
satisfaction of all obligations owed Bank hereunder as well as full
satisfaction of all obligations owed Bank under any loan or other credit
documents. Bank shall have all rights hereunder and under any such other
documents, separately and cumulatively, until the occurrence of both events
14. The applicant hereby authorizes Bank to accept, honor, or pay
(as applicable) against any draft or other document which on its face appears
otherwise in order but which is signed, issued, or presented by any party or
under the name of any party (a) purporting to act with authority (actual or
apparent) on behalf of anyone named in the Credit as the person to whom drafts
and other documents and instruments are to be drawn or issued (herein called
the "Beneficiary"), (b) purporting to claim through such Beneficiary, or (c)
posing as such Beneficiary. The applicant hereby agrees to reimburse Bank and
any and all amounts which Bank may have to pay under the Credit by reason of
any legal or factual insufficiency or infirmity in such party's conduct or
documents under clauses (a), (b), or (c) above.
EXHIBIT E
SUBSIDIARIES OF ALEXANDER & XXXXXXX, INC.
-----------------------------------------
NO. OF % OF
UNITS OR COMMON
SHARES EQUITY
OWNED OWNED
JURISDICTION BY A&B BY A&B
OF PRINCIPAL DIRECTLY OR DIRECTLY OR
LEGAL NAME ORGANIZATION BUSINESS INDIRECTLY INDIRECTLY
A&B Development Company California Real-estate 100 100%
(California)
A&B Properties, Inc. Hawaii Real-estate 4,517 100%
ABHI-Xxxxxxxx, Inc.*** Hawaii Food Products 151,785 100%
Agri-Quest Development Hawaii Agriculture 1,000 100%
Company
East Maui Irrigation Hawaii Agriculture 14,270 100%
Company, Limited
Haleakala Town Center LLC Hawaii LLC Real-estate 1 100%
Hawaiian DuraGreen, Inc. Hawaii Panelboard 1,000 100%
Kahului Trucking & Hawaii Trucking & 1,000 100%
Storage, Inc. Storage
Kauai Commercial Company, Hawaii Trucking & 1,000 100%
Incorporated Storage
Kukui'ula Development Hawaii Real-estate 1,000 100%
Company, Inc.
Prospect Venture LLC Hawaii LLC Real-estate 1 100%
South Shore Community Hawaii LLC Real-estate 1 100%
Services LLC
South Shore Resources LLC Hawaii LLC Real-estate 1 100%
Kauai Coffee Company, Hawaii Agriculture 1,000 100%
Inc.**
Ohanui Corporation Hawaii Agriculture 10 100%
Xxxxxx Navigation Hawaii Ocean 1,000 100%
Company, Inc. Transportation
Matson Intermodal System, Hawaii Freight 1,000 100%
Inc.* Transportation
Matson Intermodal _ Hawaii Freight 1,000 100%
Paragon, Inc.**** Transportation
Xxxxxx Logistics Hawaii Freight 1,000 100%
Solutions, Inc.* Transportation
Matson Terminals, Inc.* Hawaii Terminal 1,000 100%
Services
Matson Ventures, Inc.* Hawaii Transportation 500 100%
Services
XxXxxxx Sugar Company, Hawaii Real-estate 439,000 100%
Limited
Upcountry Town Center, Hawaii LLC Real-estate 1 100%
LLC
WDCI, Inc. Hawaii Real-estate 100 100%
West Maui Development Hawaii LLC Real-estate 1 100%
Company LLC
A&B, Inc. Hawaii Inactive 10 100%
The Xxxxxx Company* California Inactive 1,000 100%
The Oceanic Steamship California Inactive 5 100%
Company*
Matson Services Inc.* Hawaii Inactive 1,000 100%
* Subsidiary of Xxxxxx Navigation Company, Inc.
** Subsidiary of XxXxxxx Sugar Company, Ltd.
*** 5.3% owned by XxXxxxx Sugar Company, Ltd.
REVOLVING CREDIT NOTE
$45,000,000.00
Honolulu, Hawaii
November 30, 2001
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of FIRST HAWAIIAN BANK (the "Payee") at the offices of First Hawaiian Bank, a
Hawaii Corporation, located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx, 00000, the
principal sum of FORTY-FIVE MILLION AND NO/100 DOLLARS ($45,000,000.00), on the
Termination Date (as defined in the Agreement referred to below) in lawful
money of the United States of America and in immediately available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
November 19, 2001, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
REVOLVING CREDIT NOTE
$40,000,000.00
Honolulu, Hawaii
November 30, 2001
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of BANK OF AMERICA, N.A. (the "Payee") at the offices of First Hawaiian Bank, a
Hawaii Corporation located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx, 00000, the
principal sum of FORTY MILLION AND NO/100 DOLLARS ($40,000,000.00), on the
Termination Date (as defined in the Agreement referred to below) in lawful
money of the United States of America and in immediately available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
November 19, 2001, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
REVOLVING CREDIT NOTE
$40,000,000.00
Honolulu, Hawaii
November 30, 2001
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of XXXXX FARGO BANK, NATIONAL ASSOCIATION (the "Payee") at the offices of First
Hawaiian Bank, a Hawaii Corporation, located at 000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx, 00000, the principal sum of FORTY MILLION AND NO/100 DOLLARS
($40,000,000.00), on the Termination Date (as defined in the Agreement referred
to below) in lawful money of the United States of America and in immediately
available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
November 19, 2001, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
REVOLVING CREDIT NOTE
$30,000,000.00
Honolulu, Hawaii
November 30, 2001
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of BANK OF HAWAII (the "Payee") at the offices of First Hawaiian Bank, a Hawaii
Corporation located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx, 00000, the
principal sum of THIRTY MILLION AND NO/100 DOLLARS ($30,000,000.00), on the
Termination Date (as defined in the Agreement referred to below) in lawful
money of the United States of America and in immediately available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
November 19, 2001, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
REVOLVING CREDIT NOTE
$20,000,000.00
Honolulu, Hawaii
November 30, 2001
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of BANK OF NEW YORK (the "Payee") at the offices of First Hawaiian Bank, a
Hawaii Corporation, located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx, 00000, the
principal sum of TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00), on the
Termination Date (as defined in the Agreement referred to below) in lawful
money of the United States of America and in immediately available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
November 19, 2001, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
REVOLVING CREDIT NOTE
$10,000,000.00
Honolulu, Hawaii
November 30, 2001
ALEXANDER & XXXXXXX, INC., a Hawaii corporation (hereafter referred
to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to the order
of AMERICAN SAVINGS BANK, F.S.B. (the "Payee") at the offices of First Hawaiian
Bank, a Hawaii Corporation located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx,
00000, the principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), on
the Termination Date (as defined in the Agreement referred to below) in lawful
money of the United States of America and in immediately available funds.
The Borrower promises also to pay interest on the unpaid principal
amount thereof in like money and funds at said office from the date hereof
until paid at the rates per annum which will be determined in accordance with
the provisions of Article I and Article II of the Third Amended and Restated
Revolving Credit and Term Loan Agreement (the "Agreement") effective as of
November 19, 2001, among the Borrower, the Payee and the other banks party
thereto, said interest to be payable at the times provided for in the
Agreement.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits thereof. This Note is subject to prepayment, in whole
or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Hawaii.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
XXXXX X. XXXXXXXXX
Its Senior Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
_______________________________________________________________________________
(Use this section when evidencing a Eurodollar Loan)
EURODOLLAR LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
_______________________________________________________________________________
(Use this section when evidencing Prime Rate Loan)
PRIME RATE LOANS
----------------
_______________________________________________________________________________
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
_______________________________________________________________________________
