$125,000,000
CREDIT AGREEMENT
Dated as of
June 25, 1997
among
ABM INDUSTRIES INCORPORATED,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANCAMERICA SECURITIES, INC.
Arranger
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Interpretive Provisions . . . . . . . . . . . . . . . . 16
Section 1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . 17
ARTICLE II THE CREDITS. . . . . . . . . . . . . . . . . 18
Section 2.1 Amounts and Terms of Commitments. . . . . . . . . . . . . . . 18
Section 2.2 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.3 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . 19
Section 2.4 Conversion and Continuation Elections . . . . . . . . . . . . 20
Section 2.5 Voluntary Termination or Reduction of Commitments . . . . . . 21
Section 2.6 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . 22
Section 2.7 Mandatory Prepayments of Loans; Mandatory Commitment
Reductions. . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.8 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.9 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.10 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.11 Computation of Fees and Interest. . . . . . . . . . . . . . . 24
Section 2.12 Payments by the Company . . . . . . . . . . . . . . . . . . . 24
Section 2.13 Payments by the Banks to the Agent. . . . . . . . . . . . . . 25
Section 2.14 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . 26
Section 2.15 Extension of Commitments. . . . . . . . . . . . . . . . . . . 26
ARTICLE III THE LETTERS OF CREDIT . . . . . . . . . . . 27
Section 3.1 Letters of Credit Subfacility . . . . . . . . . . . . . . . . 27
Section 3.2 Issuance, Amendment and Renewal of Letters of Credit. . . . . 28
Section 3.3 Existing Letters of Credit; Risk Participations, Drawings and
Reimbursements. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.4 Repayment of Participations . . . . . . . . . . . . . . . . . 37
Section 3.5 Role of L/C Banks and Agent as Paying Agent . . . . . . . . . 38
Section 3.6 Obligations Absolute. . . . . . . . . . . . . . . . . . . . . 39
Section 3.7 Cash Collateral Pledge. . . . . . . . . . . . . . . . . . . . 40
Section 3.8 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . 41
Section 3.9 Uniform Customs and Practice. . . . . . . . . . . . . . . . . 41
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY . . . 42
Section 4.1 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.2 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.3 Increased Costs and Reduction of Return . . . . . . . . . . . 46
Section 4.4 Funding Losses. . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.5 Inability to Determine Rates. . . . . . . . . . . . . . . . . 47
Section 4.6 Certificates of Banks . . . . . . . . . . . . . . . . . . . . 48
Section 4.7 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE V CONDITIONS PRECEDENT. . . . . . . . . . . . . 48
Section 5.1 Conditions of Initial Credit Extensions . . . . . . . . . . . 48
Section 5.2 Conditions to All Credit Extensions . . . . . . . . . . . . . 50
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . 51
Section 6.1 Corporate Existence and Power . . . . . . . . . . . . . . . . 51
Section 6.2 Corporate Authorization; No Contravention . . . . . . . . . . 51
Section 6.3 Governmental Authorization. . . . . . . . . . . . . . . . . . 52
Section 6.4 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.6 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.7 ERISA Compliance. . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.8 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . 54
Section 6.9 Title to Properties . . . . . . . . . . . . . . . . . . . . . 54
Section 6.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.11 Financial Condition . . . . . . . . . . . . . . . . . . . . . 54
Section 6.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . 55
Section 6.13 Regulated Entities. . . . . . . . . . . . . . . . . . . . . . 55
Section 6.14 No Burdensome Restrictions. . . . . . . . . . . . . . . . . . 55
Section 6.15 Copyrights, Patents, Trademarks and Licenses, etc . . . . . . 55
Section 6.16 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.17 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.18 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . 56
Section 7.1 Financial Statements. . . . . . . . . . . . . . . . . . . . . 56
Section 7.2 Certificates; Other Information . . . . . . . . . . . . . . . 57
Section 7.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.4 Preservation of Corporate Existence, Etc. . . . . . . . . . . 59
Section 7.5 Maintenance of Property . . . . . . . . . . . . . . . . . . . 59
Section 7.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 7.7 Payment of Obligations. . . . . . . . . . . . . . . . . . . . 60
Section 7.8 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . 60
Section 7.9 Inspection of Property and Books and Records. . . . . . . . . 60
Section 7.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . 61
Section 8.1 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . 61
Section 8.2 Disposition of Assets . . . . . . . . . . . . . . . . . . . . 62
Section 8.3 Consolidations and Mergers. . . . . . . . . . . . . . . . . . 63
Section 8.4 Loans and Investments . . . . . . . . . . . . . . . . . . . . 63
Section 8.5 Limitation on Indebtedness. . . . . . . . . . . . . . . . . . 64
Section 8.6 Transactions with Affiliates. . . . . . . . . . . . . . . . . 65
Section 8.7 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 65
Section 8.8 Use of Proceeds - Ineligible Securities . . . . . . . . . . . 65
Section 8.9 Joint Ventures. . . . . . . . . . . . . . . . . . . . . . . . 66
Section 8.10 Lease Obligations . . . . . . . . . . . . . . . . . . . . . . 66
Section 8.11 Restricted Payments . . . . . . . . . . . . . . . . . . . . . 66
Section 8.12 Change in Business. . . . . . . . . . . . . . . . . . . . . . 66
Section 8.13 Accounting Changes. . . . . . . . . . . . . . . . . . . . . . 66
Section 8.14 Financial Condition . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE IX EVENTS OF DEFAULT. . . . . . . . . . . . . . 67
Section 9.1 Event of Default. . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 9.3 Rights Not Exclusive. . . . . . . . . . . . . . . . . . . . . 70
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . 70
Section 10.1 Appointment and Authorization . . . . . . . . . . . . . . . . 70
Section 10.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . 71
Section 10.3 Liability of Agent. . . . . . . . . . . . . . . . . . . . . . 71
Section 10.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . 72
Section 10.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . 72
Section 10.6 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . 73
Section 10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 73
Section 10.8 Agent in Individual Capacity. . . . . . . . . . . . . . . . . 74
Section 10.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . 74
Section 10.10 Withholding Tax . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XI MISCELLANEOUS. . . . . . . . . . . . . . . . 76
Section 11.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . 76
Section 11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 11.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . 78
Section 11.4 Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . 78
Section 11.5 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.6 Payments Set Aside. . . . . . . . . . . . . . . . . . . . . . 79
Section 11.7 Successors and Assigns. . . . . . . . . . . . . . . . . . . . 79
Section 11.8 Assignments, Participations, Etc. . . . . . . . . . . . . . . 79
Section 11.9 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.10 Automatic Debits of Fees. . . . . . . . . . . . . . . . . . . 82
Section 11.11 Notification of Addresses, Lending Offices, Etc.. . . . . . . 82
Section 11.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.13 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.14 No Third Parties Benefitted . . . . . . . . . . . . . . . . . 83
Section 11.15 Governing Law and Jurisdiction. . . . . . . . . . . . . . . . 83
Section 11.16 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . 83
Section 11.17 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . 84
SCHEDULES
Schedule 1 Letters of Credit
Schedule 2 Litigation
Schedule 3 ERISA Matters
Schedule 4 Environmental Matters
Schedule 5 Subsidiaries
Schedule 6 Permitted Liens
Schedule 7 Permitted Indebtedness
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Note
Exhibit G Form of Several Letter of Credit
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of June 25, 1997, among ABM INDUSTRIES
INCORPORATED, a Delaware corporation (the "COMPANY"), the several financial
institutions from time to time party to this Agreement (collectively, the
"BANKS"; individually, a "BANK"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Banks.
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility including letters of credit upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section I.1 CERTAIN DEFINED TERMS. The following terms have the
following meanings:
"ACQUISITION" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests or equity of any Person or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary)
provided that the Company or the Subsidiary is the surviving entity.
"AFFILIATE" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract, or otherwise.
"AGENT" means BofA in its capacity as agent for the Banks hereunder,
and any successor agent arising under SECTION 10.9.
"AGENT-RELATED PERSONS" means BofA and any successor agent arising
under SECTION 10.9 and any successor letter of credit issuing bank hereunder,
together with their respective Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"AGENT'S PAYMENT OFFICE" means the address for payments set forth on
the signature page hereto in relation to the Agent, or such other address as the
Agent may from time to time specify.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE MARGIN" means
(i) with respect to Base Rate Loans, 0%; and
(ii) with respect to Offshore Rate Loans, 0.35%.
"ARRANGER" means BancAmerica Securities, Inc., a Delaware corporation.
"ASSIGNEE" has the meaning specified in SECTION 11.8(a).
"ATTORNEY COSTS" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"BANK" has the meaning specified in the introductory clause hereto.
References to the "Banks" shall include BofA, including in its capacity as
Issuing Bank; for purposes of clarification only, to the extent that BofA may
have any rights or obligations in addition to those of the Banks due to its
status as Issuing Bank, its status as such will be specifically referenced.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, ET SEQ.).
"BASE RATE" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect for
such day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by
BofA based upon various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate.) Any change in the reference rate announced by BofA shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Revolving Loan, or an L/C Advance, that bears
interest based on the Base Rate.
"BoFA" means Bank of America National Trust and Savings Association, a
national banking association.
"BORROWING" means a borrowing hereunder consisting of Revolving Loans
of the same Type made to the Company on the same day by the Banks under Article
II, and, other than in the case of Base Rate Loans, having the same Interest
Period.
"BORROWING DATE" means any date on which a Borrowing occurs under
SECTION 2.3.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are authorized
or required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in the
applicable offshore dollar interbank market.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"CLOSING DATE" means the date on which this Agreement becomes
effective pursuant to SECTION 5.1.
"CODE" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"COMMITMENT" means, as to any Bank, the obligation of such Bank to
make Revolving Loans to the Company and to participate in Letters of Credit in
an aggregate principal amount of Loans and such Bank's Commitment Percentage of
the Effective Amount of all Letters of Credit at any one time outstanding not
exceeding the amount (a) set forth opposite such Bank's name on the signature
pages hereof under the caption "Commitment" or (b) set forth in any applicable
Assignment and Acceptance, as, in either case, the same may be reduced from time
to time pursuant to SECTION 2.5 or SECTION 2.7 or as the same may be adjusted to
give effect to any assignment under SECTION 11.8.
"COMMITMENT EXTENSION REQUEST" has the meaning set forth in
SECTION 2.15.
"COMMITMENT PERCENTAGE" means, for any Bank with respect to its
Commitment, the ratio of such Bank's Commitment to the aggregate of all the
Banks' Commitments.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT C.
"CONSOLIDATED EBITDA" means, for any period, for the Company and its
subsidiaries on a consolidated basis, the sum of (a) the net income (or net
loss) for such period PLUS (b) depreciation and interest expense and the
amortization of intangibles, PLUS (c) all accrued income taxes; without giving
effect to extraordinary losses or extraordinary gains.
"CONSOLIDATED INTEREST CHARGES" means, for any period, the aggregate
amount of interest accrued or paid by (without duplication) the Company on a
consolidated basis during such period including (i) any interest accrued or paid
during such period which is capitalized in accordance with GAAP, (ii) the
portion of any obligation under capital leases allocable to interest expense in
accordance with GAAP, and (iii) the portion of any debt discount that shall be
amortized in such period.
"CONSOLIDATED NET INCOME" means for any period net income before
extraordinary items for the Company determined in accordance with GAAP on a
consolidated basis.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which, under SECTION
2.4, the Company (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"CREDIT EXTENSION" means and includes (a) the making of any Revolving
Loans hereunder, and (b) the Issuance of any Letters of Credit hereunder.
"DEFAULT" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"DOLLARS", "DOLLARS" and "$" each mean lawful money of the United
States.
"EFFECTIVE AMOUNT" means (i) with respect to any Revolving Loans on
any date, the aggregate outstanding principal amount thereof after giving effect
to any Borrowings and prepayments or repayments of Revolving Loans occurring on
such date; and (ii) with respect to any outstanding L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date and any other changes in
the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing under
Letters of Credit taking effect on such date.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; and (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (C) a Person of which a Bank is a
Subsidiary.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"ENVIRONMENTAL LAWS" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, or safety matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) the filing of a
notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Pension Plan subject to Title IV of
ERISA; (d) a failure by the Company to make required contributions to a Pension
Plan or other Plan subject to Section 412 of the Code; (e) an event or condition
which might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (f) the imposition of any liability under Title IV of ERISA, other
than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Company; or (g) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to any
Pension Plan.
"EURODOLLAR RESERVE PERCENTAGE" has the meaning specified in the
definition of "Offshore Rate".
"EVENT OF DEFAULT" means any of the events or circumstances specified
in SECTION 9.1.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
"EXISTING BoFA LETTER OF CREDIT" means a letter of credit described in
Part A of the Schedule of Letters of Credit.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of
September 22, 1994, as amended (the "CREDIT AGREEMENT") between ABM INDUSTRIES
INCORPORATED (the "COMPANY"), the Banks referred to therein, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent.
"EXISTING LETTERS OF CREDIT" means the Existing BofA Letters of Credit
and the Existing Several Letters of Credit.
"EXISTING SEVERAL LETTER OF CREDIT" means a letter of credit described
in Part B of the Schedule of Letters of Credit; PROVIDED that such letter of
credit shall have been amended by an Existing Several Letter of Credit
Amendment.
"EXISTING SEVERAL LETTER OF CREDIT AMENDMENT" means with respect to
each letter of credit described in Part B of the Schedule of Letters of Credit,
an amendment to such letter of credit, in form and substance satisfactory to the
Agent, substituting KeyBank, National Association, for NationsBank of Texas,
N.A., as a L/C Bank under such letter of credit and adjusting each L/C Bank's
liability amount under such letter of credit so that the liability amount of
each L/C Bank is in proportion to its Commitment Percentage.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Agent.
"FEE LETTER" has the meaning specified in SECTION 2.10(a).
"FIXED CHARGE COVERAGE RATIO" means for any period the ratio of
(a) Consolidated EBITDA for such period to (b) the sum of (i) Consolidated
Interest Charges, taxes paid, dividends paid and capital expenditures during
such period and (ii) the current portion of long-term debt as of the end of such
period.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political
subdivision thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing, securing, or
otherwise providing assurances of the payment of any Indebtedness of any other
Person and includes: (a) any Lien or any asset of such Person securing any such
Indebtedness (and without regard to whether such Person has assumed personal
liability with respect thereto), and (b) any obligation, direct or indirect,
contingent or otherwise, of such Person: (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness (whether arising
by virtue of partnership arrangements, by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
condition, or otherwise); or (ii) entered into for the purpose of assuring in
any other manner the holder of such Indebtedness of the payment thereof or to
protect such holder against loss in respect thereof (in whole or in part);
PROVIDED that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"HONOR DATE" means with respect to any Letter of Credit a date on
which any amount is paid under such Letter of Credit (a) by the Issuing Bank in
the case of a Standard Letter of Credit or (b) by an L/C Bank in the case of a
Several Letter of Credit.
"INDEBTEDNESS" of any Person means at any date, without duplication
and without regard to whether matured or unmatured, absolute or contingent:
(i) all obligations of such Person for borrowed money; (ii) all obligations of
such Person evidenced by bonds, debentures, notes, or other similar instruments;
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business; (iv) all obligations of such Person as lessee under capital
leases; (v) all obligations of such Person to reimburse or prepay any bank or
other Person in respect of amounts paid under a letter of credit, banker's
acceptance, or similar instrument, whether drawn or undrawn; (vi) all
obligations of such Person to purchase securities which arise out of or in
connection with the sale of the same or substantially similar securities;
(vii) all obligations of such Person in connection with any agreement to
purchase, redeem, exchange, convert or otherwise acquire for value any capital
stock of such Person or any warrants, rights or options to acquire such capital
stock, now or hereafter outstanding, except to the extent that such obligations
remain performable solely at the option of such Person; (viii) all obligations
to repurchase assets previously sold (including any obligation to repurchase any
accounts or chattel paper under any factoring, receivables purchase, or similar
arrangement); (ix) obligations of such Person under Swap Contracts or similar
arrangements; and (x) all obligations of others of any type described in CLAUSE
(i) through CLAUSE (x) above Guaranteed by such Person.
"INDEMNIFIED LIABILITIES" has the meaning specified in SECTION 11.5.
"INDEMNIFIED PERSON" has the meaning specified in SECTION 11.5.
"INDEPENDENT AUDITOR" has the meaning specified in SECTION 7.1(a).
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
"INTEREST PAYMENT DATE" means, as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and, as to
any Base Rate Loan, the last Business Day of each calendar quarter and each date
such Loan is converted into another Type of Loan, PROVIDED that if any Interest
Period for an Offshore Rate Loan exceeds three months, the date that falls three
months after the beginning of such Interest Period and after each Interest
Payment Date thereafter is also an Interest Payment Date.
"INTEREST PERIOD" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two, three or six months thereafter as selected by
the Company in its Notice of Borrowing or Notice of Conversion/Continuation;
PROVIDED that:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the following Business
Day unless, in the case of an Offshore Rate Loan, the result of such extension
would be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the
Revolving Termination Date as in effect at the inception of such Interest
Period.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions.
"ISSUANCE DATE" has the meaning specified in SECTION 3.1(a).
"ISSUE" means, with respect to any Letter of Credit, to incorporate
the Existing Letters of Credit into this Agreement, or to issue or to extend the
expiry of, or to renew or increase the amount of, such Letter of Credit; and the
terms "ISSUED," "ISSUING" and "ISSUANCE" have corresponding meanings.
"ISSUING BANK" means BofA in its capacity as issuer of one or more
Standard Letters of Credit hereunder, together with any replacement letter of
credit issuer arising under SECTION 10.1(b) or SECTION 10.9.
"JOINT VENTURE" means a partnership, limited liability company, joint
venture or other similar legal arrangement (whether created by contract or
conducted through a separate legal entity) now or hereafter formed by the
Company or any of its Subsidiaries with another Person in order to conduct a
common venture or enterprise with such Person.
"L/C ADVANCE" means each Bank's participation in any L/C Borrowing in
accordance with its Commitment Percentage.
"L/C AMENDMENT APPLICATION" means an application form for amendment of
outstanding standby letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C APPLICATION" means an application form for issuances of standby
letters of credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
"L/C BANK" means (a) Issuing Bank with respect to a Standard Letter of
Credit and (b) each Bank with respect to a Several Letter of Credit.
"L/C BORROWING" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made nor converted into a Borrowing of Revolving Loans under SECTION 3.3(a)(iv)
OR (b)(iv).
"L/C OBLIGATIONS" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the amount of
all unreimbursed drawings under all Letters of Credit, including all outstanding
L/C Borrowings.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Bank's standard form
documents for letter of credit issuances.
"LENDING OFFICE" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, with respect to such Bank in the signature
pages hereof, in the Assignment and Acceptance, if any, pursuant to which such
Bank became a party hereto, or such other office or offices as such Bank may
from time to time notify the Company and the Agent.
"LETTER OF CREDIT" means a Standard Letter of Credit or a Several
Letter of Credit.
"LIEN" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform Commercial Code or any comparable law) and any
contingent or other agreement to provide any of the foregoing, but not including
the interest of a lessor under an operating lease.
"LOAN" means an extension of credit by a Bank to the Company under
ARTICLE II or ARTICLE III in the form of a Revolving Loan or L/C Advance.
"LOAN DOCUMENTS" means this Agreement, any Notes, the Fee Letters, the
L/C-Related Documents, and all other documents delivered to the Agent or any
Bank in connection herewith.
"MAJORITY BANKS" means at any time any two or more Banks then holding
at least 66_% of the then aggregate unpaid principal amount of the Loans, or, if
no such principal amount is then outstanding, Banks then having at least 66_% of
the Commitments.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Company to perform under any Loan Document and to avoid any Event of Default; or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Company of any Loan Document.
"NOTE" means a promissory note executed by the Company in favor of a
Bank pursuant to SECTION 2.2(b), in substantially the form of EXHIBIT F.
"NOTICE OF BORROWING" means a notice in substantially the form of
EXHIBIT A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in substantially
the form of EXHIBIT B.
"OBLIGATIONS" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document, owing by the Company to
any Bank, the Agent, or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
"OFFSHORE RATE" means, for any Interest Period with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of interest
per annum (rounded upward to the next 1/16th of 1%) determined by the Agent as
follows:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day (whether or not applicable to any
Bank) under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities") having a term comparable to such
Interest Period; and
"IBOR" means the rate of interest per annum determined by the
Agent as the rate at which dollar deposits in the approximate amount of BofA's
Offshore Rate Loan for such Interest Period would be offered by BofA's Grand
Cayman Branch, Grand Cayman, B.W.I. (or such other office as may be designated
for such purpose by BofA), to major banks in the offshore dollar interbank
market at their request at approximately 10:00 a.m. (New York City time) two
Business Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
"OFFSHORE RATE LOAN" means a Loan that bears interest based on the
Offshore Rate.
"ORGANIZATION DOCUMENTS" means, for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"OTHER TAXES" means any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any other Loan Documents.
"PARTICIPANT" has the meaning specified in SECTION 11.8(D).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Company sponsors, maintains, or to
which it makes, is making, or is obligated to make contributions, or in the case
of a multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5) plan years.
"PERMITTED LIENS" has the meaning specified in SECTION 8.1.
"PERMITTED STOCK REPURCHASES" means repurchases or redemptions by the
Company of its capital stock for fair and reasonable consideration not exceeding
in aggregate amount: (a) $4,000,000 in any four consecutive fiscal quarter
period, or (b) $12,000,000 with respect to all such repurchases or redemptions
made
on or after the Closing Date.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company sponsors or maintains or to which the Company makes, is
making, or is obligated to make contributions and includes any Pension Plan.
"PRO RATA SHARE" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks.
"REFERENCE BANK" means BofA.
"REPORTABLE EVENT" means, any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such event for
which the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer or the
president of the Company, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the Company, or any
other officer having substantially the same authority and responsibility.
"REVOLVING LOAN" has the meaning specified in SECTION 2.1, and may be
a Base Rate Loan or an Offshore Rate Loan (each a "TYPE" of Revolving Loan).
"REVOLVING TERMINATION DATE" means the earlier of (a) July 1, 2002, or
such later date to which the Revolving Termination Date is extended pursuant to
SECTION 2.15 and (b) the date on which the aggregate Revolving Commitments shall
terminate in accordance with the provisions of this Agreement.
"SCHEDULE OF ENVIRONMENTAL MATTERS" means SCHEDULE 4.
"SCHEDULE OF ERISA MATTERS" means SCHEDULE 3.
"SCHEDULE OF LETTERS OF CREDIT" means SCHEDULE 1.
"SCHEDULE OF LITIGATION" means SCHEDULE 2.
"SCHEDULE OF PERMITTED INDEBTEDNESS" means SCHEDULE 7.
"SCHEDULE OF PERMITTED LIENS" means SCHEDULE 6.
"SCHEDULE OF SUBSIDIARIES" means SCHEDULE 5.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SEVERAL LETTER OF CREDIT" means (a) an Existing Several Letter of
Credit or (b) a standby letter of credit issued by Banks severally pursuant to
SECTION 3.1(a)(ii) and in the form of EXHIBIT G or otherwise in form acceptable
to Agent and Majority Banks.
"STANDARD LETTER OF CREDIT" means (a) an Existing BofA Letter of
Credit or (b) a standby letter of credit issued by Issuing Bank pursuant to
SECTION 3.1(a)(i).
"SUBSIDIARY" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof. Unless
the context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
"SURETY INSTRUMENTS" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"SWAP CONTRACTS" means swap agreements (as such term is defined in
Section 101 of the Bankruptcy Code) and any other agreements or arrangements
designed to provide protection against fluctuations in interest or currency
exchange rates or commodity prices.
"TAXES" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank, Participant, and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by
each Bank's net income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Bank or the Agent, as the case may be, is
organized or maintains a lending office.
"TYPE" has the meaning specified in the definition of "Revolving
Loan."
"UCP" has the meaning specified in SECTION 3.9.
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of each
class having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Company, or by one or more of the
other Wholly-Owned Subsidiaries,
or both.
Section I.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and has been reviewed by counsel to the Agent, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Banks or the Agent merely because of the
Agent's or Banks' involvement in their preparation.
Section I.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE II
THE CREDITS
Section II.1 AMOUNTS AND TERMS OF COMMITMENTS. Each Bank severally
agrees, on the terms and conditions set forth herein, to make loans to the
Company (each such loan, a "REVOLVING LOAN") from time to time on any Business
Day during the period from the Closing Date to the Revolving Termination Date,
in an aggregate amount not to exceed at any time outstanding such Bank's
Commitment; PROVIDED that, after giving effect to any Borrowing of Revolving
Loans, the Effective Amount of all outstanding Revolving Loans and the Effective
Amount of all L/C Obligations, shall not at any time exceed the combined
Commitments of the Banks; and PROVIDED FURTHER that the Effective Amount of the
Revolving Loans of any Bank plus the participation of such Bank in the Effective
Amount of all L/C Obligations shall not at any time exceed such Bank's
Commitment. Within the limits of each Bank's Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this SECTION
2.1, prepay under SECTION 2.6 and reborrow under this SECTION 2.1.
Section II.2 LOAN ACCOUNTS.
(a) The Loans made by each Bank and the Letters of Credit Issued
by the Issuing Bank shall be evidenced by one or more accounts or records
maintained by such Bank or Issuing Bank, as the case may be, in the ordinary
course of business. The accounts or records maintained by the Agent, the
Issuing Bank and each Bank shall be conclusive absent manifest error of the
amount of the Loans made by the Banks to the Company and the Letters of Credit
Issued for the account of the Company, and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Bank made through the Agent, the
Loans made by such Bank may be evidenced by one or more Notes, instead of loan
accounts. Each such Bank shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Company with respect thereto.
Each such Bank is irrevocably authorized by the Company to endorse its Note(s)
and each Bank's record shall be conclusive absent manifest error; PROVIDED that
the failure of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank.
Section II.3 PROCEDURE FOR BORROWING.
(a) Each Borrowing of Revolving Loans shall be made upon the
Company's irrevocable written notice (or notice by telephone, immediately
confirmed by the Company by telefacsimile) delivered to the Agent in the form of
a Notice of Borrowing (which notice must be received by the Agent prior to 9:00
a.m. (California time)) (i) three Business Days prior to the requested Borrowing
Date, in the case of
Offshore Rate Loans, and (ii) on the requested Borrowing Date, in the case of
Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $2,000,000 or any multiple of $1,000,000 in excess
thereof;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable to the
Offshore Rate Loans, if any, included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of
any Notice of Borrowing and of the amount of such Bank's Commitment Percentage
of that Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage
of each Borrowing available to the Agent for the account of the Company at the
Agent's Payment Office by 11:00 a.m. (California time) on the Borrowing Date
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Loans will then be made available to the
Company by the Agent at such office by crediting the account of the Company on
the books of BofA with the aggregate of the amounts made available to the Agent
by the Banks or by wire transfer in accordance with written instructions
provided to the Agent by the Company at the time of the giving Notice of
Borrowing and in either case, in like funds as received by the Agent.
(d) After giving effect to any Borrowing, there may not be more
than 7 different Interest Periods in effect.
Section II.4 CONVERSION AND CONTINUATION ELECTIONS.
(a) The Company may, upon irrevocable written notice to the
Agent in accordance with SECTION 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the case of
any other Type of Revolving Loans, to convert any such Loans (or any part
thereof in an amount not less than $2,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof) into Loans of any other Type; or
(ii) elect as of the last day of the applicable Interest
Period, to continue any Revolving Loans having Interest Periods expiring on such
day (or any part thereof in an amount not less than $2,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof);
PROVIDED that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $1,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to
continue such Loans as, and convert such Loans into, Offshore Rate Loans shall
terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 9:00 a.m.
(California time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans, and (ii) on the Conversion/Continuation Date, if the
Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
renewed;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, the Company shall be deemed
to have elected to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise agree, during the
existence of an Event of Default, the Company may not elect to have a Loan
converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than 7 different Interest Periods in effect.
Section II.5 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The
Company may, upon not less than 3 Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $10,000,000 or any multiple of $1,000,000 in excess thereof;
UNLESS, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the Effective Amount of all Revolving Loans and L/C
Obligations together would exceed the amount of the combined Commitments then in
effect. Once reduced in accordance with this Section, the Commitments may not
be increased. Any reduction of the Commitments shall be applied to each Bank
according to its Pro Rata Share. All accrued commitment and letter of credit
fees to, but not including, the effective date of any reduction or termination
of Commitments, shall be paid on the effective date of such reduction or
termination.
Section II.6 OPTIONAL PREPAYMENTS. Subject to SECTION 4.4, the
Company may, at any time or
from time to time, upon not less than 5 Business Days' irrevocable notice to the
Agent, ratably prepay Loans in whole or in part, in minimum amounts of
$2,000,000 or any multiple of $1,000,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid. The Agent will promptly notify each Bank of its receipt
of any such notice, and of such Bank's Pro Rata Share of such prepayment. If
such notice is given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to SECTION 4.4.
Section II.7 MANDATORY PREPAYMENTS OF LOANS; MANDATORY COMMITMENT
REDUCTIONS. If on any date the Effective Amount of all Revolving Loans then
outstanding plus the Effective Amount of all L/C Obligations exceeds the
combined Commitments of the Banks, the Company shall immediately, and without
notice or demand, (a) prepay the outstanding principal amount of the Revolving
Loans and L/C Advances by an amount equal to the applicable excess; together
with any amounts required to be paid incident thereto pursuant to SECTION 4.4,
and (b) if any such excess remains after giving effect to such prepayments, the
Company shall deposit with or deliver to the Agent, for the benefit of the
Agent, the Issuing Bank and the Banks, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Agent and the Issuing Bank (which documents are hereby
consented to by the Banks) on such date in an amount equal to the excess of the
maximum amount then available to be drawn under the Letters of Credit over the
aggregate Commitments. Cash collateral shall be maintained in blocked deposit
accounts at BofA.
Section II.8 REPAYMENT. The Company shall repay to the Banks in
full on the Revolving Termination Date the aggregate principal amount of Loans
outstanding on such date.
Section II.9 INTEREST.
(a) Each Revolving Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be (and subject to
the Company's right to convert to other Types of Loans under SECTION 2.4), PLUS
the Applicable Margin.
(b) Interest on each Revolving Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Loans under SECTIONS 2.6 or 2.7 for the portion of the Loans so
prepaid and upon payment (including prepayment) in full thereof and, during the
existence of any Event of Default, interest shall be paid on demand of the Agent
at the request or with the consent of the Majority Banks.
(c) Notwithstanding SUBPARAGRAPH (a) of this Section, while any
Event of Default exists or after acceleration, the Company shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Loans and L/C Advances, at a
rate per annum which is determined by adding 2% per annum to the Applicable
Margin then in effect for such Loans and, in the case of Obligations not subject
to an Applicable Margin, at a rate per annum equal to the Base Rate plus 2%;
PROVIDED that, on and after the expiration of any Interest Period applicable to
any Offshore Rate Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such
Loan shall, during the continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal to the Base Rate plus 2%.
Section II.10 FEES. In addition to certain fees described in SECTION
3.8:
(a) ARRANGEMENT, AGENCY, ISSUING BANK FEES. The Company shall
pay an arrangement fee to the Arranger for the Arranger's own account, shall pay
an agency fee to the Agent for the Agent's own account, and shall pay a fronting
fee to Issuing Bank for the Issuing Bank's account, as required by the letter
agreement ("FEE LETTER") between the Company and the Arranger, the Agent and the
Issuing Bank dated May 19 and June 10, 1997.
(b) COMMITMENT FEES. The Company shall pay to the Agent for the
account of each Bank a commitment fee equal to 0.12% per annum of the average
daily unused portion of such Bank's Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon the daily
utilization for that quarter as calculated by the Agent. For purposes of
calculating utilization under this section, the Commitments shall be deemed used
to the extent of the Effective Amount of Revolving Loans then outstanding, plus
the Effective Amount of L/C Obligations then outstanding. Such commitment fee
shall accrue from the Closing Date to the Revolving Termination Date and shall
be due and payable quarterly in arrears on the last Business Day of each
calendar quarter commencing on the Closing Date through the Revolving
Termination Date, with the final payment to be made on the Revolving Termination
Date; PROVIDED that, in connection with any reduction or termination of
Commitments under SECTION 2.5 or SECTION 2.7, the accrued commitment fee
calculated for the period ending on such date shall also be paid on the date of
such reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination date to
such quarterly payment date. The commitment fees provided in this section shall
accrue at all times after the above-mentioned commencement date, including at
any time during which one or more conditions in Article V are not met.
Section II.11 COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by BofA's "reference rate" and commitment fees payable
pursuant to SECTION 2.10(b) shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more interest being paid than if computed on the basis
of a 365-day year). Interest and fees shall accrue during each period during
which interest or such fees are computed from the first day thereof to the last
day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company and the Banks in the absence of manifest
error.
Section II.12 PAYMENTS BY THE COMPANY.
(a) All payments to be made by the Company shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Company shall be made to the Agent for the account
of the Banks at the Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 11:00 a.m. (California time) on the
date specified
herein. The Agent will promptly distribute to each Bank its Pro Rata Share (or
other applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Agent later than 11:00 a.m.
(California time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks that the Company will not make
such payment in full as and when required, the Agent may assume that the Company
has made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such Bank
until the date repaid.
Section II.13 PAYMENTS BY THE BANKS TO THE AGENT.
(a) Unless the Agent receives notice from a Bank on or prior to
the Closing Date or, with respect to any Borrowing after the Closing Date, at
least one Business Day prior to the date of such Borrowing in the case of
Offshore Rate Borrowing and within one hour of receipt of the Notice of
Borrowing in the case of a Base Rate Borrowing, that such Bank will not make
available as and when required hereunder to the Agent for the account of the
Company the amount of that Bank's Pro Rata Share of the Borrowing, the Agent may
assume that each Bank has made such amount available to the Agent in immediately
available funds on the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Company on
such date a corresponding amount. If and to the extent any Bank shall not have
made its full amount available to the Agent in immediately available funds and
the Agent in such circumstances has made available to the Company such amount,
that Bank shall on the Business Day following such Borrowing Date make such
amount available to the Agent, together with interest at the Federal Funds Rate
for each day during such period. A notice of the Agent submitted to any Bank
with respect to amounts owing under this section (a) shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the Agent
shall constitute such Bank's Loan on the date of Borrowing for all purposes of
this Agreement. If such amount is not made available to the Agent on the
Business Day following the Borrowing Date, the Agent will notify the Company of
such failure to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a Loan
on such Borrowing Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing Date.
Section II.14 SHARING OF PAYMENTS, ETC. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of the Loans made by
it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each of
them; PROVIDED that if all or any portion of such excess payment is thereafter
recovered from the purchasing Bank, such purchase shall to that extent be
rescinded and each other Bank shall repay to the purchasing Bank the purchase
price paid therefor, together with an amount equal to such paying Bank's ratable
share (according to the proportion of (i) the amount of such paying Bank's
required repayment to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Company agrees that any Bank so
purchasing a participation from another Bank may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to SECTION 11.9) with respect to such participation as
fully as if such Bank were the direct creditor of the Company in the amount of
such participation. The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Banks following any such purchases or
repayments.
Section II.15 EXTENSION OF COMMITMENTS. On or after the second
anniversary of the Closing Date, but not less than 90 days prior to the then
effective Revolving Termination Date, the Borrower may, after consultation with
the Agent, request that the Revolving Termination Date be extended for an
additional year by giving the Agent notice of such request (a "Commitment
Extension Request"), and upon the proper and timely receipt by the Agent of any
such Commitment Extension Request, the Agent shall promptly notify each Bank of
the contents thereof, which notification shall include a copy of such Commitment
Extension Request, and not less than 60 days prior to the then effective
Revolving Termination Date, each Bank shall notify the Agent whether such Bank
approves or disapproves such Commitment Extension Request. The failure by any
Bank to give such notice to Agent by such date shall be deemed to constitute
disapproval by such Bank. If all Banks have notified Agent of their approval of
a Commitment Extension Request as above provided then promptly upon receipt of
the requisite notifications, the Agent shall give the Company notice thereof and
upon the giving of such notice, Revolving Termination Date shall be extended to
the next succeeding anniversary of the Revolving Termination Date; PROVIDED that
unless notice of such extension is given by the Agent to the Company not less
than 30 days prior to the then effective Revolving Termination Date, such
Commitment Extension Request shall be deemed disapproved by all Banks.
ARTICLE III
THE LETTERS OF CREDIT
Section III.1 LETTERS OF CREDIT SUBFACILITY.
(a) On the terms and conditions set forth herein from time to
time on any Business Day during the period from the Closing Date to the
Revolving Termination Date (i) the Issuing Bank agrees to issue Standard Letters
of Credit for the account of the Company, (ii) each L/C Bank agrees to severally
join in the Issuance of Several Letters of Credit for the account of the
Company, (iii) in the case of either (i) or (ii) each L/C Bank agrees (A) to
amend or renew Letters of Credit previously issued by it, in accordance with
SECTIONS
3.2(A)(iii) and (iv) and (b)(ii), and (B) to honor drafts under the Letters of
Credit; and (iv) in the case of either (i) or (ii) each Bank severally agrees to
participate in Letters of Credit Issued for the account of the Company; PROVIDED
that no L/C Bank shall be obligated to Issue, and no Bank shall be obligated to
participate in, any Letter of Credit if as of the date of Issuance of such
Letter of Credit (the "ISSUANCE DATE") (1) the Effective Amount of all L/C
Obligations plus the Effective Amount of all Revolving Loans exceeds the
combined Commitments of the Banks or (2) the participation of any Bank in the
Effective Amount of all L/C Obligations plus the Effective Amount of the
Revolving Loans of such Bank exceeds such Bank's Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company's ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed.
(b) No L/C Bank is under any 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 such
L/C Bank from Issuing such Letter of Credit, or any Requirement of Law
applicable to such L/C Bank or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over such
L/C Bank shall prohibit, or request that such L/C Bank refrain from, the
Issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon such L/C Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such L/C Bank is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon such L/C Bank any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Issuing Bank in good xxxxx xxxxx
material to it;
(ii) such L/C Bank has received written notice from any
Bank, the Agent or the Company, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one or more of the
applicable conditions contained in ARTICLE V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is
(A) more than one year after the date of Issuance (subject, however to
successive extensions for periods of one year or less at the option of such L/C
Bank under "evergreen" or similar provisions), unless the Majority Banks have
approved such expiry date in writing, or (B) more than one year after the
Revolving Termination Date, unless all of the Banks have approved such expiry
date in writing;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the Issuing Bank
in the case of Standard Letters of Credit and Majority Banks in the case of
Several Letters of Credit, or the Issuance of a Letter of Credit shall violate
any applicable policies of the Issuing Bank in the case of Standard Letters of
Credit and Majority Banks in the case of Several Letters of Credit;
(v) any Letter of Credit is for the purpose of supporting
the issuance of any letter of credit by any other Person; or
(vi) such Letter of Credit is in a face amount less than
$3,000,000 in the case of a Several Letter of Credit or to be denominated in a
currency other than Dollars.
Section III.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) The following is applicable to Standard Letters of Credit:
(i) Each Standard Letter of Credit shall be issued upon
the irrevocable written request of the Company received by the Issuing Bank
(with a copy sent by the Company to the Agent) at least four Business Days (or
such shorter time as the Issuing Bank may agree in a particular instance in its
sole discretion) prior to the proposed date of issuance. Each such request for
issuance of a Standard Letter of Credit shall be by facsimile, confirmed
immediately in an original writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to the Issuing Bank: (A) the proposed
date of issuance of the Standard Letter of Credit (which shall be a Business
Day); (B) the face amount of the Standard Letter of Credit; (C) the expiry date
of the Standard Letter of Credit; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by the beneficiary of the Standard
Letter of Credit in case of any drawing thereunder; (F) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; and (G) such other matters as the Issuing Bank may require.
(ii) At least two Business Days prior to the Issuance of
any Standard Letter of Credit, the Issuing Bank will confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of the L/C
Application or L/C Amendment Application from the Company and, if not, the
Issuing Bank will provide the Agent with a copy thereof. Unless the Issuing
Bank has received notice on or before the Business Day immediately preceding the
date the Issuing Bank is to issue a requested Standard Letter of Credit from the
Agent (A) directing the Issuing Bank not to issue such Standard Letter of Credit
because such issuance is not then permitted under SECTION 3.1(a) as a result of
the limitations set forth in CLAUSES (1) and (2) thereof or SECTION 3.1(b)(ii);
or (B) that one or more conditions specified in ARTICLE V are not then
satisfied; then, subject to the terms and conditions hereof, the Issuing Bank
shall, on the requested date, issue a Standard Letter of Credit for the account
of the Company in accordance with the Issuing Bank's usual and customary
business practices.
(iii) From time to time while a Standard Letter of Credit
is outstanding and prior to the Revolving Termination Date, the Issuing Bank
will, upon the written request of the Company received by the Issuing Bank (with
a copy sent by the Company to the Agent) at least five Business Days (or such
shorter time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any Standard Letter
of Credit issued by it. Each such request for amendment of a Standard Letter of
Credit shall be made by facsimile, confirmed immediately in an original writing,
made in the form of an L/C Amendment Application and shall specify in form and
detail satisfactory to the Issuing Bank: (A) the Standard Letter of Credit to
be amended; (B) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the Issuing Bank may require. The Issuing Bank shall be under
no obligation to amend any Standard Letter of Credit if: (1) the Issuing Bank
would have no obligation at such time to issue such Standard Letter of Credit in
its amended form under the terms of this Agreement; or (2) the beneficiary of
any such Standard Letter of Credit does not accept the proposed amendment to the
Standard Letter of Credit. The Agent will promptly notify the Banks of the
receipt by it of any L/C Application or L/C Amendment Application.
(iv) The Issuing Bank shall be entitled to authorize (or
take no action to prevent) the automatic renewal of any Standard Letter of
Credit issued by it. The Issuing Bank shall be under no
obligation so to renew any Standard Letter of Credit if the Issuing Bank would
have no obligation at such time to issue or amend such Standard Letter of Credit
in its renewed form under the terms of this Agreement. If any outstanding
Standard Letter of Credit shall provide that it shall be automatically renewed
unless the beneficiary thereof receives notice from the Issuing Bank that such
Letter of Credit shall not be renewed, and if at the time of renewal the Issuing
Bank would be entitled to authorize the automatic renewal of such Standard
Letter of Credit in accordance with this SECTION 3.2(a)(iv) upon the request of
the Company but the Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such renewal or other written
direction by the Company with respect thereto, the Issuing Bank shall
nonetheless be permitted to allow such Standard Letter of Credit to renew, and
the Company and the Banks hereby authorize such renewal, and, accordingly, the
Issuing Bank shall be deemed to have received an L/C Amendment Application from
the Company requesting such renewal.
(v) The Issuing Bank may, at its election (or as required
by the Agent at the direction of the Majority Banks), deliver any notices of
non-renewal, termination or other communications to any Standard Letter of
Credit beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than one year after the
Revolving Termination Date.
(vi) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Standard Letter of Credit,
or amendment to or renewal of a Standard Letter of Credit, to an advising bank
or a beneficiary, a true and complete copy of each such Standard Letter of
Credit or amendment to or renewal of a Standard Letter of Credit.
(b) The following is applicable to Several Letters of Credit:
(i) Each Several Letter of Credit shall be issued upon
the irrevocable written request of the Company received by the Agent at least
five Business Days prior to the proposed Issuance Date. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately in
an original writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Agent: (A) the proposed date of issuance of
the Several Letter of Credit (which shall be a Business Day); (B) the face
amount of the Several Letter of Credit; (C) the expiry date of the Several
Letter of Credit; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by the beneficiary of the Several Letter of Credit in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by the beneficiary in case of any drawing thereunder; and (G) such
other matters as the Agent may require. The Agent shall promptly give notice to
each Bank of such written request received by the Agent from the Company for
issuance of the Several Letter of Credit. Subject to the receipt of such
notice, each Bank shall severally issue the Several Letter of Credit by
delivering to the Agent such Bank's counterpart signature page to the Several
Letter of Credit, and not later than 12:00 noon (California time) on the
proposed Issuance Date. Upon receipt by the Agent of the counterpart signature
pages of each Bank, the Agent will promptly deliver such Several Letter of
Credit to the beneficiary thereof.
(ii) From time to time while a Several Letter of Credit is
outstanding and prior to the Revolving Termination Date, the Banks will, upon
the irrevocable written request of the Company received by the Agent at least
five Business Days prior to the proposed date of amendment, severally amend such
Several Letter of Credit solely to extend the expiry date thereof to a date no
later than one year after the Revolving
Termination Date. Each such request for amendment of the Letter of Credit shall
be by facsimile, confirmed immediately in an original writing, in the form of an
L/C Amendment Application. The Agent shall promptly give notice to each Bank of
such written request received by the Agent from the Company for amendment of
such Several Letter of Credit. No Bank shall be under any obligation to amend
such Several Letter of Credit if: (A) the Bank would have no obligation at such
time to issue such Several Letter of Credit in its amended form under the terms
of this Agreement; or (B) the beneficiary of such Several Letter of Credit does
not accept the proposed amendment to such Several Letter of Credit. Subject to
the foregoing, and to the receipt of such notice from the Agent, each Bank shall
severally issue the amendment to such Several Letter of Credit by delivering to
the Agent such Bank's counterpart signature page to the amendment to such
Several Letter of Credit not later than 12:00 noon (California time) on the
proposed date of amendment. Upon receipt by the Agent of such counterpart
signature pages of each Bank, the Agent will promptly deliver the amendment to
such Several Letter of Credit to the beneficiary thereof.
(c) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than a Letter of Credit).
Section III.3 EXISTING LETTERS OF CREDIT; RISK PARTICIPATIONS,
DRAWINGS AND REIMBURSEMENTS.
(a) The following is applicable to Standard Letters of Credit:
(i) On and after the Closing Date, the Existing BofA
Letters of Credit shall be deemed for all purposes, including for purposes of
the fees to be collected pursuant to SECTIONS 3.8(a) and 3.8(b), and
reimbursement of costs and expenses to the extent provided herein, Standard
Letters of Credit outstanding under this Agreement and entitled to the benefits
of this Agreement and the other Loan Documents, and shall be governed by the
applications and agreements pertaining thereto and by this Agreement. Each Bank
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank on the Closing Date a participation in each such
Standard Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) such Bank's Commitment Percentage times (ii) the maximum amount
available to be drawn under such Standard Letter of Credit and the amount of
such drawing, respectively. For purposes of SECTIONS 2.1 and 2.10(b), the
Existing BofA Letters of Credit shall be deemed to utilize pro rata the
Commitment of each Bank.
(ii) Immediately upon the Issuance of each Standard Letter
of Credit in addition to those described in SECTION 3.3(a)(i), each Bank shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Issuing Bank a participation in such Standard Letter of Credit and each
drawing thereunder in an amount equal to the product of (A) the Commitment
Percentage of such Bank, times (B) the maximum amount available to be drawn
under such Standard Letter of Credit and the amount of such drawing,
respectively. For purposes of SECTION 2.1, each Issuance of a Standard Letter
of Credit shall be deemed to utilize the Commitment of each Bank by an amount
equal to the amount of such participation.
(iii) In the event of any request for a drawing under a
Standard Letter of Credit by the beneficiary or transferee thereof, the Issuing
Bank will promptly notify the Company with a copy to the Agent. The Company
shall reimburse the Issuing Bank prior to 10:00 a.m. (California time), on each
Honor Date under each Standard Letter of Credit, in an amount equal to the
amount paid on such Honor Date by the Issuing Bank. In the event the Company
fails to reimburse the Issuing Bank for the full amount of any drawing
under any Standard Letter of Credit by 10:00 a.m. (California time) on the Honor
Date, the Issuing Bank will promptly notify the Agent and the Agent will
promptly notify each Bank thereof, and the Company shall be deemed to have
requested that Base Rate Loans be made by the Banks to be disbursed on the Honor
Date under such Standard Letter of Credit, subject to the amount of the
unutilized portion of the Revolving Commitment and subject to the conditions set
forth in SECTION 5.2. Any notice given by the Issuing Bank or the Agent
pursuant to this SECTION 3.3(a)(iii) may be oral if immediately confirmed in
writing (including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(iv) Each Bank shall upon any notice pursuant to SECTION
3.3(a)(iii) make available to the Agent for the account of the Issuing Bank an
amount in Dollars and in immediately available funds equal to its Commitment
Percentage of the amount of the drawing, whereupon the participating Banks shall
(subject to SECTION 3.3(a)(v)) each be deemed to have made a Revolving Loan
consisting of a Base Rate Loan to the Company in that amount. If any Bank so
notified fails to make available to the Agent for the account of the Issuing
Bank the amount of such Bank's Commitment Percentage of the amount of the
drawing by no later than 12:00 noon (California time) on the Honor Date, then
interest shall accrue on such Bank's obligation to make such payment, from the
Honor Date to the date such Bank makes such payment, at a rate per annum equal
to the Federal Funds Rate in effect from time to time during such period. The
Agent will promptly give notice of the occurrence of the Honor Date, but failure
of the Agent to give any such notice on the Honor Date or in sufficient time to
enable any Bank to effect such payment on such date shall not relieve such Bank
from its obligations under this SECTION 3.3(a).
(v) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans to the Company in
whole or in part, because of the Company's failure to satisfy the conditions set
forth in SECTION 5.2 or for any other reason, the Company shall be deemed to
have incurred from the Issuing Bank an L/C Borrowing in the amount of such
drawing, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to the Base Rate
plus 2% per annum, and each Bank's payment to the Issuing Bank pursuant to
SECTION 3.3(a)(iv) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Bank in
satisfaction of its participation obligation under this SECTION 3.3(a).
(vi) Each Bank's obligation in accordance with this
Agreement to make the Revolving Loans or L/C Advances, as contemplated by this
SECTION 3.3(a), as a result of a drawing under a Standard Letter of Credit,
shall be absolute and unconditional and without recourse to the Issuing Bank and
shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against the Issuing Bank, the Company or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, an Event of Default
or a Material Adverse Effect; or (C) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; PROVIDED that each
Bank's obligation to make Revolving Loans under this SECTION 3.3(a) is subject
to the conditions set forth in SECTION 5.2.
(b) The following is applicable to Several Letters of Credit:
(i) On and after the Closing Date, the Existing Several
Letters of Credit shall be deemed for all purposes, including for purposes of
the fees to be collected pursuant to SECTIONS 3.8(a) and
3.8(b), and reimbursement of costs and expenses to the extent provided
herein, Several Letters of Credit outstanding under this Agreement and
entitled to the benefits of this Agreement and the other Loan Documents, and
shall be governed by the applications and agreements pertaining thereto and
by this Agreement. Each Bank shall execute the appropriate form of Existing
Several Letter of Credit Amendment with respect to each such Existing Several
Letter of Credit. For purposes of SECTIONS 2.1 and 2.10(b), the Existing
Several Letters of Credit shall be deemed to utilize pro rata the Commitment
of each Bank.
(ii) In the event of any request for a drawing under any
Several Letter of Credit by the beneficiary thereof, the Agent will promptly
notify the Company and each Bank. The Agent will promptly transmit, by
facsimile (confirmed promptly by telephonic notice) followed by overnight
express mailing with all charges prepaid, to each Bank at its Lending Office, or
other office or offices as designated by such Bank, copies of all drafts and
documents presented by the beneficiary under the Several Letter of Credit, and
will notify each Bank of the date payment is to be made to the beneficiary
thereof as a result of such drawing under the Several Letter of Credit (such
date determined in accordance with the terms of the Several Letter of Credit).
Each Bank shall notify the Agent, not later than 11:00 a.m. (California time) on
the date payment is to be made to the beneficiary thereof as a result of such
drawing under the Several Letter of Credit, that (A) such Bank has determined
that it will make payment under the Several Letter of Credit, or (B) such Bank
has determined that it will not make payment under the Several Letter of Credit,
and give the reasons for such determination. In the event the Agent receives
notice from a Bank under CLAUSE (b) of this section, the Agent shall as soon as
practicable notify the Company of the determination of such Bank and the reasons
given by such Bank therefor.
(iii) Each Bank shall make available to the Agent, not
later than 12:00 noon (California time) on the date on which payment is to be
made to the beneficiary as a result of a drawing under a Several Letter of
Credit, (A) such Bank's Commitment Percentage, times (B) the amount of the
drawing made by such beneficiary. The Agent shall then promptly disburse to
such beneficiary all amounts so received from the Banks.
(iv) The Company shall reimburse the Agent, for the account
of each Bank, prior to 1:00 p.m. (California time), on each Honor Date under
each Several Letter of Credit in an amount equal to the amount paid on such
Honor Date by such Bank. In the event that more than one Bank makes a payment
under the Several Letter of Credit on the Honor Date, any reimbursements from
the Company shall be made to the Agent, for the account of such Banks paying on
such Honor Date, in proportion to the amounts so paid by such Banks. In the
event the Company fails to reimburse the Agent for the account of all such Banks
for the full amount of any payment made by such Banks in respect of any drawing
under the Several Letter of Credit by 1:00 p.m. (California time) on the Honor
Date, the Agent will promptly notify each such Bank thereof, and the Company
shall be deemed to have requested that Base Rate Loans in an aggregate amount
equal to such unreimbursed amount be made by the Banks to be disbursed on the
Honor Date, subject to the amount of the unutilized portion of the Commitment
and subject to the conditions set forth in SECTION 5.2. Any notice given by the
Agent pursuant to this SECTION 3.3(b)(iv) may be oral if immediately confirmed
in writing (including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(v) If all of the Banks have paid their pro rata share of
the draw request under the Several Letter of Credit, but subject to SECTION
3.3(b)(vi) and the PROVISO in SECTION 3.3(b)(vii), then each Bank shall upon any
notice pursuant to SECTION 3.3(b)(iv) be deemed to have made a Revolving Loan
consisting of a
Base Rate Loan to the Company equal to its Commitment Percentage of the amount
of the unreimbursed drawing. If one or more of the Banks shall not have paid
its pro rata share of the draw request under the Several Letter of Credit on the
date on which payment is due thereunder (a "NON-HONORING BANK"), but subject to
SECTION 3.3(b)(vi) and the PROVISO in SECTION 3.3(b)(vii), each Non-Honoring
Bank shall upon any notice pursuant to SECTION 3.3(b)(iv) make available to the
Agent for the account of the Banks which have so paid their pro rata share of
the draw request under the Letter of Credit (the "HONORING BANKS") an amount in
Dollars and in immediately available funds equal to such Non-Honoring Bank's
Commitment Percentage of the amount of the unreimbursed drawing paid by each
Honoring Bank on the Honor Date, whereupon the Banks shall (subject to
SECTION 3.3(b)(vi) and the PROVISO in SECTION 3.3(b)(vii)) each be deemed to
have made a Revolving Loan consisting of a Base Rate Loan to the Company equal
to its Commitment Percentage of the amount of the unreimbursed drawing. If any
Non-Honoring Bank so notified fails to make available to the Agent for the
account of the Honoring Banks the amount of such Non-Honoring Bank's Commitment
Percentage of the amount of the reimbursed drawing by no later than 2:00 p.m.
(California time) on the Honor Date, then interest shall accrue on the Honor
Date to the date such Non-Honoring Bank makes such payment, at a rate per annum
equal to the Federal Funds Rate in effect from time to time during such period.
The Agent will promptly give notice of the occurrence of the Honor Date, but
failure of the Agent to give any such notice on the Honor Date or in sufficient
time to enable any Bank to effect such payment on such date shall not relieve
such Bank from its obligations under this SECTION 3.3(b).
(vi) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans to the Company in
whole or in part, because of the Company's failure to satisfy the conditions set
forth in SECTION 5.2 or for any other reason, the Company shall be deemed to
have incurred from each Honoring Bank an L/C Borrowing in the amount of such
drawing, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to the Base Rate
plus 2% per annum, and each Non-Honoring Bank shall be deemed, and hereby
irrevocably and unconditionally agrees to, have purchased a participation in
each such L/C Borrowing in an amount equal to the product of (i) the Commitment
Percentage of such Non-Honoring Bank, times (ii) the amount of each such L/C
Borrowing, and each Non-Honoring Bank's payment to the Agent for the account of
the relevant Honoring Bank pursuant to SECTION 3.3(b)(v) shall be deemed payment
in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Non-Honoring Bank in satisfaction of its participation
obligation under this SECTION 3.3(b); PROVIDED that each Non-Honoring Bank's
obligation to purchase a participation in any such L/C Borrowing is subject to
(and shall not exceed) the amount of the unutilized portion of the Commitment of
such Non-Honoring Bank.
(vii) Each Bank's obligation in accordance with this
Agreement to make the Revolving Loans or L/C Advances, as contemplated by this
SECTION 3.3(b), as a result of a drawing under the Letter of Credit, shall be
absolute and unconditional and without recourse to the Agent or any other Bank
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against the Agent, the Company or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default, an Event of Default or a
Material Adverse Effect; or (C) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; PROVIDED that each
Bank's obligation to make Revolving Loans under this SECTION 3.3(b) is subject
to the conditions set forth in SECTION 5.2 and the amount of the unutilized
portion of the Commitment of such Bank.
Section III.4 REPAYMENT OF PARTICIPATIONS.
(a) Upon (and only upon) receipt by the Agent for the account of
any L/C Bank of immediately available funds from the Company (i) in
reimbursement of any payment made by such L/C Bank under a Letter of Credit with
respect to which any Bank has paid the Agent for the account of such L/C Bank
for such Bank's participation in such Letter of Credit pursuant to SECTION 3.3
or (ii) in payment of interest thereon, the Agent will pay to each Bank, in the
same funds as those received by the Agent for the account of such L/C Bank, the
amount of such Bank's Commitment Percentage of such funds, and such L/C Bank
shall receive the amount of the Commitment Percentage of such funds of any Bank
that did not so pay the Agent for the account of the L/C Bank.
(b) If the Agent or any L/C Bank is required at any time to
return to the Company, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by the
Company to the Agent for the account of such L/C Bank pursuant to SECTION 3.4(a)
in reimbursement of a payment made under the Letter of Credit or interest or fee
thereon, each Bank shall, on demand of the Agent, forthwith return to the Agent
or such L/C Bank the amount of its Commitment Percentage of any amounts so
returned by the Agent or such L/C Bank plus interest thereon from the date such
demand is made to the date such amounts are returned by such Bank to the Agent
or such L/C Bank, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
Section III.5 ROLE OF L/C BANKS AND AGENT AS PAYING AGENT.
(a) Each Bank and the Company agree that, (i) in paying any
drawing under a Standard Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Standard Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document and (ii) in
disbursing to the beneficiary amounts made available to the Agent by any Bank
for payment to the beneficiary as a result of a draw under any Several Letter of
Credit, the Agent shall not have any responsibility to obtain any document or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank or the Agent shall
be liable to any Bank for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including the
Majority Banks, as applicable); (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; PROVIDED that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement, whether
before or after any drawing by such beneficiary or transferee. No Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
any L/C Bank or Bank, shall be liable or responsible for any of the matters
described in CLAUSES (i) through (vii) of SECTION 3.6; PROVIDED that anything in
such clauses to the contrary notwithstanding, that the Company may have
a claim against a L/C Bank, and a L/C Bank may be liable to the Company, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company proves were caused
by such L/C Bank's willful misconduct or gross negligence or such L/C Bank's
willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) a L/C Bank may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) a L/C Bank
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a 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.
Section III.6 OBLIGATIONS ABSOLUTE. The obligations of the Company
under this Agreement and any L/C-Related Document to reimburse any L/C Bank for
a drawing under a Letter of Credit, and to repay any L/C Borrowing and any
drawing under a Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), any L/C Bank or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby or by
the L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit;
(v) any payment by any L/C Bank under any Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of any Letter of Credit; or any payment made by any L/C Bank
under any Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Company in respect of any
Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company or a
guarantor.
Section III.7 CASH COLLATERAL PLEDGE. Upon the request of the Agent,
(i) if any L/C Bank has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing hereunder, or
(ii) if, as of one year after the Revolving Termination Date, any Letters of
Credit may for any reason remain outstanding and partially or wholly undrawn, or
(iii) if the L/C Obligations shall be declared due and payable pursuant to
SECTION 9.2 (b), then, the Company shall immediately pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Bank and the
Banks, as collateral for the L/C Obligations, cash or deposit account balances
in an amount equal to the L/C Obligations. The Company hereby grants the Agent,
for the benefit of the Agent, the Issuing Bank and the Banks, a security
interest in all such cash and deposit account balances and agrees to execute
security documentation in furtherance of the grant of such security interest in
form and substance satisfactory to the Agent and the Issuing Bank (which
documents are hereby consented to by the Banks). Such collateral shall be
maintained in blocked deposit accounts at BofA.
Section III.8 LETTER OF CREDIT FEES.
(a) The Company shall pay to the Agent for the account of each
of the Banks a letter of credit fee with respect to the Letters of Credit equal
to 0.35% per annum of the average daily maximum amount available to be drawn of
the outstanding Letters of Credit, computed on a quarterly basis in arrears on
the last Business Day of each calendar quarter based upon Letters of Credit
outstanding for that quarter as calculated by the Agent. Such letter of credit
fees shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter during which Letters of Credit are outstanding, commencing
on the first such quarterly date to occur after the Closing Date, through the
Revolving Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire), with the final payment to be made on the
Revolving Termination Date (or such later expiration date).
(b) The Company shall pay to each L/C Bank from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of such L/C Bank relating to letters of
credit as from time to time in effect.
Section III.9 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce ("UCP") most recently at the time of issuance of any Letter of Credit
shall (unless otherwise expressly provided in the Letters of Credit) apply to
the Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
Section IV.1 TAXES.
(a) Any and all payments by the Company to each Bank or the
Agent under this Agreement and any other Loan Document shall be made free and
clear of, and without deduction or withholding for any Taxes. In addition, the
Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless each Bank
and the Agent for the full amount of Taxes or Other Taxes (including any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by the Bank or the Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days after
the date the Bank or the Agent makes written demand therefor.
(c) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then, subject to SECTION 4.1(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section) such Bank
or the Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law; and
(iv) the Company shall also pay to each Bank or the Agent
for the account of such Bank, at the time interest is paid, all additional
amounts which the respective Bank specifies as necessary to preserve the after-
tax yield the Bank would have received if such Taxes or Other Taxes had not been
imposed.
(d) Within 30 days after the date of any payment by the Company
of Taxes or Other Taxes, the Company shall furnish the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(e) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to section (c) of this Section, then such Bank shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue, if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
(f) Each Bank which is a foreign person (i.e., a person other
than a United States person for United States Federal income tax purposes)
agrees that:
(i) it shall, no later than the Closing Date (or, in the
case of a Bank which becomes a party hereto pursuant to SECTION 11.8 after the
Closing Date, the date upon which the Bank becomes a party hereto) deliver to
the Company through the Agent two accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor thereto ("Form 4224"), or
two accurate and complete signed originals of Internal Revenue Service Form 1001
or any successor thereto ("Form 1001"), as appropriate, in each case indicating
that the Bank is on the date of delivery thereof entitled to receive payments of
principal, interest and fees under this Agreement free from withholding of
United States Federal income tax;
(ii) if at any time the Bank makes any changes necessitating
a new Form 4224 or Form 1001, it shall with reasonable promptness deliver to the
Company through the Agent in replacement for, or in addition to, the forms
previously delivered by it hereunder, two accurate and complete signed originals
of Form 4224; or two accurate and complete signed originals of Form 1001, as
appropriate, in each case indicating that the Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and fees under this
Agreement free from withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event mentioned in
(ii) above) requiring a change in or renewal of the most recent Form 4224 or
Form 1001 previously delivered by such Bank and deliver to the Company through
the Agent two accurate and complete original signed copies of Form 4224 or Form
1001 in replacement for the forms previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's or the Agent's
reasonable request to that effect, deliver to the Company or the Agent (as the
case may be) such other forms or similar documentation as may be required from
time to time by any applicable law, treaty, rule or regulation in order to
establish such Bank's tax status for withholding purposes.
(g) The Company will not be required to pay any additional
amounts in respect of United States Federal income tax pursuant to SECTION
4.1(c) to any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Bank to comply with its obligations
under SECTION 4.1(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Company a Form
4224 in respect of such Lending Office pursuant to SECTION 4.1(f), and such Bank
shall not at any time be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of payments by the Company hereunder
for the account of such Lending Office for any reason other than a change in
United States law or regulations or in the official interpretation of such law
or regulations by any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after the date
of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Company a Form
1001 in respect of such Lending Office pursuant to SECTION 4.1(f), and such Bank
shall not at any time be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of payments by the Company hereunder
for the account of such Lending Office for any reason other than a change in
United States law or regulations or any applicable tax treaty or regulations or
in the official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of delivery of such Form
1001.
(h) If, at any time, the Company requests any Bank to deliver
any forms or other documentation pursuant to SECTION 4.1(f)(iv), then the
Company shall, on demand of such Bank through the Agent, reimburse such Bank for
any costs and expenses (including Attorney Costs) reasonably incurred by such
Bank in the preparation or delivery of such forms or other documentation.
(i) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to SECTION 4.1(c), then such Bank shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
Section IV.2 ILLEGALITY.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Company through
the Agent, any obligation of that Bank to make Offshore Rate Loans shall be
suspended until the Bank notifies the Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from such Bank (with a copy to the Agent), prepay in full such
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon, either on the last day of the Interest Period thereof, if the
Bank may lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such Offshore
Rate Loan. If the Company is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Company shall borrow from the affected
Bank, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Loans has been so terminated or suspended, the Company may elect, by giving
notice to the Bank through the Agent that all Loans which would otherwise be
made by the Bank as Offshore Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank shall designate a different Lending Office with respect to its
Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise disadvantageous to the Bank.
Section IV.3 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the Offshore
Rate or in respect of the assessment rate payable by any Bank to the FDIC for
insuring U.S. deposits) in or in the interpretation of any law or regulation or
(ii) the compliance by that Bank with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans or participating in
Letters of Credit, or, in the case of the Issuing Bank, any increase in the cost
to the Issuing Bank of agreeing to issue, issuing or maintaining any Letter of
Credit or of agreeing to make or making, funding or maintaining any unpaid
drawing under any Letter of Credit, then the Company shall be liable for, and
shall from time to time, upon demand (with a copy of such demand to be sent to
the Agent),
pay to the Agent for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
the Bank (or its Lending Office) or any corporation controlling the Bank with
any Capital Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation controlling
the Bank and (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitment or the Obligations, then, upon demand of such Bank
to the Company through the Agent, the Company shall pay to such Bank, from time
to time as specified by such Bank, additional amounts sufficient to compensate
such Bank for such increase.
Section IV.4 FUNDING LOSSES. The Company shall reimburse each Bank
and hold each Bank harmless from any loss or expense which the Bank may sustain
or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a
Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under SECTION 2.6;
(d) the prepayment (including pursuant to SECTION 2.7, but
excluding pursuant to SECTION 4.2(b)) or other payment (including after
acceleration thereof) of an Offshore Rate Loan on a day that is not the last day
of the relevant Interest Period; or
(e) the automatic conversion under SECTION 2.4 of any Offshore
Rate Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Banks under this Section, (i)
each Offshore Rate Loan made by a Bank (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been funded
at the IBOR used in determining the Offshore Rate for such Offshore Rate Loan by
a matching deposit or other borrowing in the interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Offshore Rate
Loan is in fact so funded.
Section IV.5 INABILITY TO DETERMINE RATES. If the Reference Bank or
the Majority Banks determines that for any reason adequate and reasonable means
do not exist for determining the Offshore Rate for
any requested Interest Period with respect to a proposed Offshore Rate Loan, or
that the Offshore Rate applicable pursuant to SECTION 2.9(a) for any requested
Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to the Banks of funding such Loan, the
Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent upon the instruction of the Majority Banks revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Banks shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans.
Section IV.6 CERTIFICATES OF BANKS. Any Bank claiming reimbursement
or compensation under this ARTICLE IV shall deliver to the Company (with a copy
to the Agent) a certificate setting forth in reasonable detail the manner of
calculation and the amount payable to the Bank hereunder and such certificate
shall be conclusive and binding on the Company in the absence of manifest error.
Section IV.7 SURVIVAL. The agreements and obligations of the
Company in this ARTICLE IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
Section V.1 CONDITIONS OF INITIAL CREDIT EXTENSIONS. This
Agreement and the obligation of each Bank to make Credit Extensions hereunder
shall only become effective on the date that the Agent has received all of the
following, in form and substance satisfactory to the Agent and each Bank, and in
sufficient copies for each Bank:
(a) CREDIT AGREEMENT. This Agreement executed by each party
thereto;
(b) RESOLUTIONS; INCUMBENCY.
(i) copies of the resolutions of the board of directors of
the Company authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary or an Assistant Secretary of the Company; and
(ii) a certificate of the Secretary or Assistant Secretary
of the Company certifying the names and true signatures of the officers of the
Company authorized to execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be delivered by it hereunder;
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the following
documents:
(i) the articles or certificate of incorporation and the
bylaws of the Company as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company as of the Closing
Date; and
(ii) a good standing certificate for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of its state
of incorporation and each state where the Company is qualified to do business as
a foreign corporation as of a recent date;
(d) LEGAL OPINIONS. An opinion of Xxxxx Xxxx, general counsel
to the Company and addressed to the Agent and the Banks, substantially in the
form of EXHIBIT D;
(e) PAYMENT OF FEES. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date, together with Attorney Costs of BofA to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute BofA's reasonable estimate of Attorney Costs incurred or to
be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Company and
BofA); including any such costs, fees and expenses arising under or referenced
in SECTIONS 2.10 and 11.4;
(f) LETTERS OF CREDIT. An Existing Several Letter of Credit
Amendment for each letter of credit described in Part B of the Schedule of
Letters of Credit, executed by the Banks and consented to by the beneficiary
under such letter of credit;
(g) EXISTING CREDIT AGREEMENT. Evidence satisfactory to the
Agent that the Existing Credit Agreement has been terminated in accordance with
the terms thereof and that all "Loans" (as therein defined) and other liquidated
obligations thereunder shall have been paid in full or that adequate provision
for such payment shall have been made.
(h) CERTIFICATE. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in ARTICLE
VI are true and correct on and as of such date, as though made on and as of such
date; and
(ii) no Default or Event of Default exists or would result
from the Credit Extension; and
(i) OTHER DOCUMENTS. Such other approvals, opinions, documents
or materials as the Agent or any Bank may reasonably request;
PROVIDED that this Agreement shall not become effective or be binding on any
party hereto unless each of the foregoing conditions has been satisfied not
later than July 15, 1997, unless a waiver of such condition has been theretofore
obtained in accordance with SECTION 11.1. The Agent shall promptly notify the
Borrower and the Banks of the Closing Date, and such notice shall be conclusive
and binding on all parties hereto.
Section V.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
each Bank to make any Revolving Loan to be made by it (including its initial
Revolving
Loan) or to continue or convert any Revolving Loan under SECTION 2.4 and the
obligation of any L/C Bank to Issue any Letter of Credit (including any initial
Letters of Credit) is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date, Conversion/Continuation Date, or
Issuance Date:
(a) NOTICE, APPLICATION. The Agent shall have received (with,
in the case of the initial Revolving Loan only, a copy for each Bank) a Notice
of Borrowing or a Notice of Conversion/Continuation, as applicable or in the
case of any Issuance of any Letter of Credit, the L/C Bank and the Agent shall
have received an L/C Application or L/C Amendment Application, as required under
SECTION 3.2;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI shall be true and correct on and as
of such Borrowing Date, Conversion/Continuation Date or Issuance Date with the
same effect as if made on and as of such Borrowing Date, Conversion/Continuation
Date or Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date); and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Borrowing, continuation or conversion or
Issuance.
Each Notice of Borrowing, Notice of Conversion/Continuation, and L/C Application
or L/C Amendment Application submitted by the Company hereunder shall constitute
a representation and warranty by the Company hereunder, as of the date of each
such notice and as of each Borrowing Date, Conversion/Continuation Date, or
Issuance Date, as applicable, that the conditions in SECTION 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
Section VI.1 CORPORATE EXISTENCE AND POWER. The Company and each of
its Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its material assets, carry on its
business substantially as now conducted, and to execute, deliver, and perform
its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in CLAUSE (c) or CLAUSE (d) OF THIS
SECTION 6.1, to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Section VI.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The
execution, delivery and performance by the Company of this Agreement and each
other Loan Document to which the Company is party, have been duly authorized by
all necessary corporate action, and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any Contractual
Obligation to which the Company is a party or any order, injunction, writ or
decree of any Governmental Authority to which the Company or its property is
subject; or
(c) violate any Requirement of Law.
Section VI.3 GOVERNMENTAL AUTHORIZATION. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of the Agreement or any other Loan Document.
Section VI.4 BINDING EFFECT. This Agreement and each other Loan
Document to which the Company is a party constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
Section VI.5 LITIGATION. Except as specifically disclosed in the
SCHEDULE OF LITIGATION, there are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Company, or its Subsidiaries or any of their respective
properties which:
(a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect. No injunction,
writ, temporary restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan Document,
or directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
Section VI.6 NO DEFAULT. No Default or Event of Default exists or
would result from the incurring of any Obligations by the Company. As of the
Closing Date, neither the Company nor any Subsidiary is in default under or with
respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to have a Material
Adverse Effect, or that would, if such default had occurred after the Closing
Date, create an Event of Default under SECTION 9.1(e).
Section VI.7 ERISA COMPLIANCE.
(a) Except as specifically disclosed in Part A of the SCHEDULE
OF ERISA MATTERS, each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such qualification.
(b) Except as specifically disclosed in Part B of the SCHEDULE
OF ERISA MATTERS, (i) there are no pending, or to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect and (ii) there has been no prohibited
transaction or other violation of the fiduciary responsibility rule with respect
to any Plan which could reasonably result in a Material Adverse Effect.
(c) Except as specifically disclosed in Part C of the SCHEDULE
OF ERISA MATTERS, no ERISA Event has occurred or is reasonably expected to occur
with respect to any Pension Plan.
(d) Except as specifically disclosed in Part D of the SCHEDULE
OF ERISA MATTERS, no Pension Plan has any Unfunded Pension Liability. The
aggregate Unfunded Pension Liability for all Pension Plans does not exceed
$1,000,000.
(e) Except as specifically disclosed in Part E of the SCHEDULE
OF ERISA MATTERS, the Company has not incurred, nor does it reasonably expect to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA).
(f) Except as specifically disclosed in Part F of the SCHEDULE
OF ERISA MATTERS, the Company has not transferred any Unfunded Pension Liability
to any Person or otherwise engaged in a transaction that could be subject to
Section 4069 of ERISA.
(g) Except as specifically disclosed in Part G of the SCHEDULE
OF ERISA MATTERS, (i) no trade or business (whether or not incorporated under
common control with the Company within the meaning of Section 414(b), (c), (m)
or (o) of the Code) maintains or contributes to any Pension Plan or other Plan
subject to Section 412 of the Code, and (ii) neither the Company nor any Person
under common control with the Company (as defined in the preceding sentence) has
ever contributed to any multiemployer plan within the meaning of Section
4001(a)(3) of ERISA.
Section VI.8 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of
the Loans are to be used solely for the purposes set forth in and permitted by
SECTION 7.10 and SECTION 8.7. Neither the Company nor any Subsidiary is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
Section VI.9 TITLE TO PROPERTIES. The Company and each Subsidiary
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
Section VI.10 TAXES. The Company and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Company or any Subsidiary that would, if made, have a Material Adverse
Effect.
Section VI.11 FINANCIAL CONDITION.
(a) The audited consolidated financial statements of the Company
and its Subsidiaries dated October 31, 1996, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal year ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein;
(ii) fairly present the financial condition of the Company
and its Subsidiaries as of the date thereof and results of operations for the
period covered thereby; and
(iii) show all material Indebtedness and other liabilities,
direct or contingent, of the Company and its consolidated Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments and
Guarantees.
(b) Since October 31, 1996, there has been no Material Adverse
Effect.
Section VI.12 ENVIRONMENTAL MATTERS. The Company monitors in the
ordinary course of business the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties, and as
a result thereof the Company has reasonably concluded that, except as
specifically disclosed in the SCHEDULE OF ENVIRONMENTAL MATTERS, such
Environmental Laws and Environmental Claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section VI.13 REGULATED ENTITIES. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment Company" within
the meaning of the Investment Company Act of 1940. The Company is not subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
Section VI.14 NO BURDENSOME RESTRICTIONS. Neither the Company nor
any Subsidiary is a party to or bound by any Contractual Obligation, or subject
to any restriction in any Organization Document, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.
Section VI.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The
Company and its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Company,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
Section VI.16 SUBSIDIARIES. As of the Closing Date with respect to
Subsidiaries in existence on the Closing Date and as has been notified to Agent
and Banks with respect to Subsidiaries acquired after the Closing Date, the
Company has no Subsidiaries other than those specifically disclosed in Part A of
SCHEDULE OF SUBSIDIARIES hereto and has no material equity investments in any
other corporation or entity other than those specifically disclosed in Part B of
SCHEDULE OF SUBSIDIARIES.
Section VI.17 INSURANCE. The properties of the Company and its
Subsidiaries are insured in compliance with SECTION 7.6.
Section VI.18 FULL DISCLOSURE. None of the representations or
warranties made by the Company or any Subsidiary in the Loan Documents as of the
date such representations and warranties are made or deemed made, and none of
the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Company or any Subsidiary in connection with
the Loan Documents (including the offering and disclosure materials delivered by
or on behalf of the Company to the Banks prior to the Closing Date), contains
any untrue statement of a material fact or omits any material fact required to
be stated therein or necessary to make the statements made therein, in light of
the circumstances under which they are made, not misleading as of the time when
made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
Section VII.1 FINANCIAL STATEMENTS. The Company shall deliver to the
Agent, in form and detail satisfactory to the Agent and the Majority Banks, with
sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year (commencing with the fiscal year ended October 31,
1997), a copy of the audited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the related consolidated statements
of income or operations, shareholders' equity and cash flows for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year and which may be in the form of the Company's SEC Form 10-K as filed
with the Securities and Exchange Commission for the relevant fiscal year, and
accompanied by the opinion of KPMG Peat Marwick or another nationally-recognized
independent public accounting firm ("INDEPENDENT AUDITOR") which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 60 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the fiscal quarter ended July 31, 1997), a copy of the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing on the first day and ending on
the last day of such quarter and which may be in the form of the Company's SEC
Form 10-Q as filed with the Securities and Exchange Commission for the relevant
fiscal quarter, and certified by a Responsible Officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end audit
adjustments), the financial position and the results of operations of the
Company and the Subsidiaries.
Section VII.2 CERTIFICATES; OTHER INFORMATION. The Company shall
furnish to the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in SECTIONS 7.1(a) and (b), a Compliance Certificate executed by a
Responsible Officer;
(b) promptly, copies of all financial statements and reports
that the Company sends to its shareholders, and copies of all financial
statements and regular, periodical or special reports (including Forms 10K, 10Q
and 8K) that the Company or any Subsidiary may make to, or file with, the SEC;
(c) concurrently with the delivery of the financial statements
referenced in SECTION 7.1(a), a report on the Company's and its consolidated
Subsidiaries workers' compensation experience for such fiscal year, including
details on claims paid and accruals for future payments booked during such final
year;
(d) concurrently with the delivery of the financial statements
referenced in SECTION 7.1(a), an annual budget of the Company and its
consolidated Subsidiaries for the next succeeding fiscal year, broken down by
operating division and including revenue and profitability;
(e) concurrently with the delivery of the financial statements
referenced in SECTION 7.1(b), an update of the annual budget with respect to the
remainder of the fiscal year; and
(f) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary as the
Agent, at the request of any Bank, may from time to time request.
Section VII.3 NOTICES. The Company shall promptly notify the Agent
and the Agent shall promptly notify each Bank:
(a) of the occurrence of any Default or Event of Default, and of
the occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default;
(b) of any matter that has resulted or may result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the Company
or any Subsidiary and any Governmental Authority; or (iii) the commencement of,
or any material development in, any litigation or proceeding affecting the
Company or any Subsidiary; including pursuant to any applicable Environmental
Laws;
(c) of any of the following events affecting the Company,
together with a copy of any notice with respect to such event that may be
required to be filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company with respect to such event:
(i) an ERISA Event;
(ii) if any of the representations and warranties in
Section 6.7 ceases to be true and correct;
(iii) the adoption of any new Pension Plan or other Plan
subject to Section 412 of the Code;
(iv) the adoption of any amendment to a Pension Plan or
other Plan subject to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension Liability; or
(v) the commencement of contributions to any Pension Plan
or other Plan subject to Section 412 of the Code; and
(d) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under SECTION 7.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been (or
foreseeably will be) breached or violated.
Section VII.4 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company
shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business;
(c) use reasonable efforts, in the ordinary course of business,
to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
Section VII.5 MAINTENANCE OF PROPERTY. The Company shall maintain,
and shall cause each Subsidiary to maintain, and preserve all its property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Section VII.6 INSURANCE. The Company shall maintain, and shall cause
each Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons; PROVIDED that with
respect to public liability and property damage coverage and workers'
compensation coverage, the Company's self insurance plan as in effect on the
date of this Agreement shall be deemed sufficient compliance with this Section.
Section VII.7 PAYMENT OF OBLIGATIONS. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and
(c) all indebtedness, as and when due and payable, but subject
to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
Section VII.8 COMPLIANCE WITH LAWS. The Company shall comply, and
shall cause each Subsidiary to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act and Environmental
Laws).
Section VII.9 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The
Company shall maintain and shall cause each Subsidiary to maintain proper books
of record and account, in which full, true and correct entries in conformity
with GAAP consistently applied shall be made of all financial transactions and
matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent or any Bank to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; PROVIDED, HOWEVER, when an Event
of Default exists the Agent or any Bank may do any of the foregoing at the
expense of the Company at any time during normal business hours and without
advance notice.
Section VII.10 USE OF PROCEEDS. The Company shall use the proceeds of
the Loans for working capital and other general corporate purposes not in
contravention of any Requirement of Law or of any Loan Document.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
Section VIII.1 LIMITATION ON LIENS. The Company shall not, and shall
not suffer or permit any Subsidiary to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
its property, whether now owned or hereafter acquired, other than the following
("PERMITTED LIENS"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in the SCHEDULE OF PERMITTED LIENS
securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by SECTION 7.7, provided that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property
subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of the Company or its Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii) contingent obligations
on surety and appeal bonds, and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the ordinary course of business, provided all
such Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(g) Purchase money security interests on any property acquired
or held by the Company or its Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property; PROVIDED that (i) any such Lien
attaches to such property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the property so acquired
in such transaction, (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such property, and (iv) the principal amount of
the Indebtedness secured by any and all such purchase money security interests
shall not at any time exceed $2,000,000;
(h) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and all such
liens in the aggregate at any time outstanding for the Company and its
Subsidiaries do not exceed $1,000,000;
(i) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
and
(j) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a creditor
depository institution; PROVIDED that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution.
Section VIII.2 DISPOSITION OF ASSETS. The Company shall not, and
shall not suffer or permit any Subsidiary to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment; and
(c) dispositions of inventory or equipment by the Company or any
Subsidiary to the Company or any Subsidiary pursuant to reasonable business
requirements; and
(d) dispositions not otherwise permitted hereunder which are
made for fair market value; PROVIDED that (i) at the time of any disposition, no
Default or Event of Default shall exist or shall result from such disposition,
(ii) the aggregate sales price from such disposition shall be paid in cash, and
(iii) the aggregate value of all assets so sold by the Company and its
Subsidiaries, together, shall not exceed in any fiscal year 5% of consolidated
net worth of the Company as of the end of the preceding fiscal year.
Section VIII.3 CONSOLIDATIONS AND MERGERS. The Company shall not, and
shall not suffer or permit any Subsidiary to, merge, consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether in one transaction
or in a series of transactions all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided that the
Company shall be the continuing or surviving corporation, or with any one or
more Subsidiaries, provided that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation; and
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or another
Wholly-Owned Subsidiary.
Section VIII.4 LOANS AND INVESTMENTS. The Company shall not purchase
or acquire, or suffer or permit any Subsidiary to purchase or acquire, or make
any commitment therefor, any capital stock, equity interest, or any obligations
or other securities of, or any interest in, any Person, or make or commit to
make any Acquisitions, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in, any Person
including any Affiliate of the Company, except for:
(a) any investment in: (i) direct obligations of the United
States or any agency thereof, or obligations guaranteed by the United States or
any agency thereof, (ii) debt securities rated in at least the second highest
grade by at least one nationally recognized credit rating agency, (iii) time
deposits with, including certificates of deposit issued by, (A) any Bank or
(B) any office of any bank or trust company whose certificates of deposit are
rated in one of the two highest grades by at least one nationally recognized
rating agency, (iv) repurchase agreements entered into with a bank or trust
company described in CLAUSE (iii) above of this definition (or with securities
broker-dealers of nationally recognized standing) with respect to obligations
described in CLAUSE (i) above of this definition, or (v) variable rate preferred
stocks issued by, or supported by letters of credit issued by, a bank or trust
company described in CLAUSE (iii) above of this definition (or by its parent
holding company), PROVIDED that in each case such investment by its terms
requires, or permits the holder thereof at its option to require, repayment,
redemption, or repurchase thereof within six (6) months from the date of
acquisition thereof by such holder;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) extensions of credit by the Company to any of its
Wholly-Owned Subsidiaries or by any of its Wholly-Owned Subsidiaries to another
of its Wholly-Owned Subsidiaries; or
(d) investments incurred in order to consummate Acquisitions;
PROVIDED that (i) such
Acquisitions are undertaken in accordance with all applicable Requirements of
Law; and (ii) the prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent governing body of the
acquiree is obtained.
Section VIII.5 LIMITATION ON INDEBTEDNESS. The Company shall not, and
shall not suffer or permit any Subsidiary to, create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness existing on the Closing Date and set forth in
the SCHEDULE OF PERMITTED INDEBTEDNESS;
(c) Indebtedness of corporations which become Subsidiaries after
the date of this Agreement, PROVIDED that (i) such indebtedness existed at the
time the respective corporations became Subsidiaries and was not created in
anticipation thereof, (ii) after giving effect to such Indebtedness on the
Company's consolidated financial statements, there is no Default or Event of
Default, and (iii) such Indebtedness does not exceed $10,000,000; and
(d) Indebtedness securing purchase money liens permitted by
SECTION 8.1(g).
Section VIII.6 TRANSACTIONS WITH AFFILIATES. The Company shall not,
and shall not suffer or permit any Subsidiary to, enter into any transaction
with any Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary.
Section VIII.7 USE OF PROCEEDS. The Company shall not, and shall not
suffer or permit any Subsidiary to, use any portion of the Loan proceeds or any
Letter of Credit, directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance indebtedness of the Company or others
incurred to purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the Exchange
Act.
Section VIII.8 USE OF PROCEEDS - INELIGIBLE SECURITIES. The Company
shall not, directly or indirectly, use any portion of the Loan proceeds or any
Letter of Credit (i) knowingly to purchase Ineligible Securities from a Section
20 Subsidiary during any period in which such Section 20 Subsidiary makes a
market in such Ineligible Securities, (ii) knowingly to purchase during the
underwriting or placement period Ineligible Securities being underwritten or
privately placed by a Section 20 Subsidiary, or (iii) to make payments of
principal or interest on Ineligible Securities underwritten or privately placed
by a Section 20 Subsidiary and issued by or for the benefit of the Company or
any Affiliate of the Company. As used in this Section, "SECTION 20 SUBSIDIARY"
means the Subsidiary of the bank holding company controlling any Bank, which
Subsidiary has been granted authority by the Federal Reserve Board to underwrite
and deal in certain Ineligible Securities; and "INELIGIBLE SECURITIES" means
securities which may not be underwritten or dealt in by member banks of the
Federal Reserve System under Section 16 of the Banking Act of 1933 (12 U.S.C.
Section 24, Seventh), as amended.
Section VIII.9 JOINT VENTURES. The Company shall not, and shall not
suffer or permit any
Subsidiary to enter into any Joint Venture, other than in the ordinary course of
business.
Section VIII.10 LEASE OBLIGATIONS. The Company shall not, and
shall not suffer or permit any Subsidiary to, create or suffer to exist any
obligations for the payment of rent for any property under lease or agreement to
lease, except for:
(a) operating leases of the Company and of Subsidiaries in
existence on the Closing Date and any renewal, extension or refinancing thereof;
and
(b) operating leases entered into by the Company or any
Subsidiary after the Closing Date in the ordinary course of business.
Section VIII.11 RESTRICTED PAYMENTS. The Company shall not, and
shall not suffer or permit any Subsidiary to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock
or any warrants, rights or options to acquire such shares, now or hereafter
outstanding; except that Wholly-Owned Subsidiaries may declare and make dividend
payments and other distributions to the Company or other Wholly-Owned
Subsidiaries and that the Company and any Wholly-Owned Subsidiary may:
(a) declare and make dividend payments or other distributions
payable solely in its common stock;
(b) make, during periods that no Event of Default has occurred
and is continuing, Permitted Stock Repurchases; and
(c) declare and pay ordinary cash dividends to its stockholders
on a basis consistent with past practice.
Section VIII.12 CHANGE IN BUSINESS. The Company shall not, and
shall not suffer or permit any Subsidiary to, engage in any material line of
business substantially different from those lines of business carried on by the
Company and its Subsidiaries on the date hereof.
Section VIII.13 ACCOUNTING CHANGES. The Company shall not, and
shall not suffer or permit any Subsidiary to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Company or of any Subsidiary.
Section VIII.14 FINANCIAL CONDITION. The Company shall not:
(a) LOSSES. Permit its quarterly Consolidated Net Income to be
less than one dollar in each of any two consecutive fiscal quarters ending after
January 31, 1994.
(b) FIXED CHARGE COVERAGE RATIO. Permit its Fixed Charge
Coverage Ratio for any four fiscal quarter period to be less than 1.20 to 1.00.
ARTICLE IX
EVENTS OF DEFAULT
Section IX.1 EVENT OF DEFAULT. Any of the following shall
constitute an "EVENT OF DEFAULT":
(a) NON-PAYMENT. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or (ii) within 3 Business Days after the same becomes due, any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by the Company or any Subsidiary made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Company, any Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made; or
(c) SPECIFIC DEFAULTS. The Company fails to perform or observe
any term, covenant or agreement contained in any of SECTIONS 7.1, 7.2, 7.3 or
7.9 or in ARTICLE viii; or
(d) OTHER DEFAULTS. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 20 days after the
earlier of (i) the date upon which a Responsible Officer knew or reasonably
should have known of such failure or (ii) the date upon which written notice
thereof is given to the Company by the Agent or any Bank; or
(e) CROSS-DEFAULT. The Company or any Subsidiary (i) fails to
make any payment in respect of any Indebtedness having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than $5,000,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues after
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure; or (ii) fails to perform or observe any
other condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Indebtedness , and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure if the effect of such
failure, event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or cash collateral in respect thereof to be
demanded; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Company's or any Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
levy; (ii) the Company or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan which has resulted or could reasonably be expected to result in liability
of the Company under Title IV of ERISA to the Pension Plan or the PBGC in an
aggregate amount in excess of $1,000,000; or (ii) the commencement or increase
of contributions to, or the adoption of or the amendment of a Pension Plan by
the Company which has resulted or could reasonably be expected to result in an
increase in Unfunded Pension Liability among all Pension Plans in an aggregate
amount in excess of $1,000,000; or
(i) MONETARY JUDGMENTS. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is entered
against the Company or any Subsidiary involving in the aggregate a liability (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $1,000,000 or more, and the same shall
remain unsatisfied, unvacated and unstayed pending appeal for a period of 10 or
more days after the entry thereof; or
(j) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order or
decree is entered against the Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) CHANGE OF CONTROL. Any Person or two or more Persons acting
in concert shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 50% or more of the outstanding shares of voting stock of the
Company; or
(l) ADVERSE CHANGE. There occurs a Material Adverse Effect.
Section IX.2 REMEDIES. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans or Issue
Several Letters of Credit and any obligation of the Issuing Bank to Issue
Standard Letters of Credit to be terminated, whereupon such commitments and
obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that
is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law;
PROVIDED that upon the occurrence of any event specified in CLAUSES (f) or (g)
of SECTION 9.1 (in the case of CLAUSE (i) of CLAUSE (g) upon the expiration of
the 60-day period mentioned therein), the obligation of each Bank to make Loans
or Issue Several Letters of Credit and any obligation of the Issuing Bank to
Issue Standard Letters of Credit shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable without further act of the
Agent, the Issuing Bank or any Bank.
Section IX.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
Section IX.4 CERTAIN FINANCIAL COVENANT DEFAULTS. In the event
that, after taking into account any extraordinary charge to earnings taken or to
be taken as of the end of any fiscal period of the Company (a "CHARGE"), and if
solely by virtue of such Charge, there would exist an Event of Default due to
the breach of any of SECTION 8.14 as of such fiscal period end date, such Event
of Default shall be deemed to arise upon the earlier of (a) the date after such
fiscal period end date on which the Company announces publicly it will take, is
taking or has taken such Charge (including an announcement in the form of a
statement in a report filed with the SEC) or, if such announcement is made prior
to such fiscal period end date, the date that is such fiscal period end date,
and (b) the date the Company delivers to the Agent its audited annual or
unaudited quarterly financial statements in respect of such fiscal period
reflecting such Charge as taken.
ARTICLE X
THE AGENT
Section X.1 APPOINTMENT AND AUTHORIZATION.
(a) Each Bank hereby irrevocably appoints, designates and
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent may agree at the
request of the Majority Lenders to act for such Issuing Bank with respect
thereto; PROVIDED that the Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this ARTICLE X with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit Issued by it or proposed to be Issued by it and the application and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term "Agent", as used in this ARTICLE X, included the Issuing Bank
with respect to such acts or omissions, and (ii) as additionally provided in
this Agreement with respect to the Issuing Bank.
Section X.2 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
Section X.3 LIABILITY OF AGENT. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Bank
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
Section X.4 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Majority Banks and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in SECTION 5.1, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Bank.
Section X.5 NOTICE OF DEFAULT. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks, unless the Agent
shall have received written notice from a Bank or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Banks of its receipt
of any such notice. The Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Majority Banks in
accordance with ARTICLE IX; PROVIDED that unless and until the Agent has
received any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Banks.
Section X.6 CREDIT DECISION. Each Bank acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the affairs
of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Company
and its Subsidiaries hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the Agent,
the Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Company which
may come into the possession of any of the Agent-Related Persons.
Section X.7 INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata,
from and against any and all Indemnified Liabilities; PROVIDED that no Bank
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities to the extent such liabilities result from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
Section X.8 AGENT IN INDIVIDUAL CAPACITY. BofA and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Company and
its Subsidiaries and Affiliates as though BofA were not the Agent or the Issuing
Bank hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Subsidiary) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans, BofA
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent or the Issuing Bank.
Section X.9 SUCCESSOR AGENT. The Agent may, and at the request of
the Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If
the Agent resigns under this Agreement, the Majority Banks shall appoint from
among the Banks a successor agent for the Banks. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Banks and the Company, a successor agent
from among the Banks. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this ARTICLE X and SECTIONS 11.4 and 11.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent
by the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above. Notwithstanding the foregoing, however, BofA may not be removed as the
Agent at the request of the Majority Banks unless
BofA shall also simultaneously be replaced as "Issuing Bank" hereunder pursuant
to documentation in form and substance reasonably satisfactory to BofA.
Section X.10 WITHHOLDING TAX.
(a) Each Bank subject to SECTION 4.1(f) agrees to promptly
notify the Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Bank. To the extent of
such percentage amount, the Agent will treat such Bank's IRS Form 1001 as no
longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Company to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by SECTION 4.1(f)
of this Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax imposed by
sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank (because the
appropriate form was not delivered, was not properly executed, or because such
Bank failed to notify the Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Bank shall indemnify the Agent fully for all amounts paid, directly
or indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Banks under this section
shall survive the payment of all Obligations and the resignation or replacement
of the Agent.
ARTICLE XI
MISCELLANEOUS
Section XI.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company therefrom, shall be effective unless the
same shall be in writing and signed by the Majority Banks (or by the Agent at
the written request of the Majority Banks) and the Company and acknowledged by
the Agent, and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; PROVIDED that no
such waiver, amendment, or consent shall, unless in writing and signed by all
the Banks and the Company and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any Bank (or reinstate
any Commitment terminated pursuant to SECTION 9.2(a));
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or any fees or other amounts payable hereunder or under any
other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder; or
(e) amend this Section, or SECTIONS 2.14, 8.1, 11.4, or 11.5 or
any provision herein providing for consent or other action by all Banks;
and PROVIDED FURTHER that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the Issuing Bank
under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by it, (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Majority Banks or
all the Banks, as the case may be, affect the rights or duties of the Agent
under this Agreement or any other Loan Document, and (iii) the Fee Letters may
be amended, or rights or privileges thereunder waived, in a writing executed by
the parties thereto.
Section XI.2 NOTICES.
(a) All notices, requests and other communications shall be in
writing (including, unless the context expressly otherwise provides, by
facsimile transmission or by telephone confirmed by facsimile transmission,
provided that any matter transmitted by the Company by facsimile shall be
immediately confirmed by a telephone call to the recipient at the number
specified for such recipient on the signature pages hereof, and mailed, faxed or
delivered, to the address or facsimile number specified for notices to such
recipient on the signature pages hereof; or, as directed to the Company or the
Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to ARTICLE II, III or X shall not be effective until actually
received by the Agent, and notices pursuant to ARTICLE III to the Issuing Bank
shall not be effective until actually received by the Issuing Bank at the
address specified for the "Issuing Bank" on the applicable signature page
hereof.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action taken or not
taken by the Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans and L/C Obligations
shall not be affected in any way or to any extent by any failure by the Agent
and the Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the Banks to be contained in
the telephonic or facsimile notice.
Section XI.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
Section XI.4 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent and
Issuing Bank) within five Business Days after demand (subject to SECTION 5.1(e))
for all costs and expenses incurred by BofA (including in its capacity as Agent
and Issuing Bank) in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by BofA (including in its
capacity as Agent and Issuing Bank) with respect thereto; and
(b) pay or reimburse the Agent, the Issuing Bank, the Arranger
and each Bank within five Business Days after demand (subject to SECTION 5.1(e))
for all costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding).
Section XI.5 INDEMNITY. Whether or not the transactions
contemplated hereby are
consummated, the Company shall indemnify and hold the Agent-Related Persons, and
each Bank and each of its respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an "INDEMNIFIED PERSON") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans, the termination of the
Letters of Credit and the termination, resignation or replacement of the Agent
or replacement of any Bank) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or Letters
of Credit or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"); PROVIDED that the Company shall have no obligation hereunder to
any Indemnified Person with respect to Indemnified Liabilities resulting solely
from the gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive payment of all other Obligations.
Section XI.6 PAYMENTS SET ASIDE. To the extent that the Company
makes a payment to the Agent or the Banks, or the Agent or the Banks exercise
their right of set-off, and such payment or the proceeds of such set-off or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
set-off had not occurred, and (b) each Bank severally agrees to pay to the Agent
upon demand its pro rata share of any amount so recovered from or repaid by the
Agent.
Section XI.7 SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of the Agent and each Bank.
Section XI.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Bank may, with the written consent of the Company at all
times other than during the existence of an Event of Default, the Agent, the
Issuing Bank, and the beneficiary of each outstanding Several Letter of Credit,
which consents of the Company and the Agent shall not be unreasonably withheld,
at any time assign and delegate to one or more Eligible Assignees (provided that
no written consent of the Company, the Agent or the Issuing Bank shall be
required in connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank) (each an "ASSIGNEE") all,
or any ratable part of all, of the Loans, the Commitments, the L/C Obligations
and the other rights and obligations of such Bank hereunder, in a minimum amount
of $10,000,000; PROVIDED that the Company and the Agent may continue to deal
solely and directly with such Bank in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the Agent by such Bank and
the Assignee; (ii) such Bank and its Assignee shall have delivered to the
Company and the Agent an Assignment and
Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") together with
any Note or Notes subject to such assignment and (iii) the assignor Bank or
Assignee has paid to the Agent a processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents, and (ii) the assignor Bank shall, to the extent that rights
and obligations hereunder and under the other Loan Documents have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance, this Agreement shall be deemed to
be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank PRO TANTO.
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "PARTICIPANT")
participating interests in any Loans, the Commitment of that Bank and the other
interests of that Bank (the "originating Bank") hereunder and under the other
Loan Documents; PROVIDED that (i) the originating Bank's obligations under this
Agreement shall remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Company, the
Issuing Bank and the Agent shall continue to deal solely and directly with the
originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no Bank
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Banks as
described in the FIRST PROVISO to SECTION 11.1. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Company
hereunder shall be determined as if such Bank had not sold such participation;
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by the Company and provided to it by
the Company or any Subsidiary, or by the Agent on such Company's or Subsidiary's
behalf, under this Agreement or any other Loan Document, and neither it nor any
of its Affiliates shall use any such information other than in connection with
or in enforcement of this Agreement and the other Loan Documents; except to the
extent such information (i) was or becomes generally available to the public
other than as a result of disclosure by the Bank, or (ii) was or becomes
available on a non-confidential basis from a source other than the Company,
provided that such source is not bound by a confidentiality agreement with the
Company known
to the Bank; PROVIDED that any Bank may disclose such information (A) at the
request or pursuant to any requirement of any Governmental Authority to which
the Bank is subject or in connection with an examination of such Bank by any
such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Bank or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Bank's independent auditors and other professional advisors; (G) to any
Affiliate of such Bank, or to any Participant or Assignee, actual or potential,
provided that such Affiliate, Participant or Assignee agrees to keep such
information confidential to the same extent required of the Banks hereunder, and
(H) as to any Bank, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Company is party or is
deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note, if any,
held by it in favor of any Federal Reserve Bank in accordance with Regulation A
of the FRB or U.S. Treasury Regulation 31 C.F.R. Section 203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
Section XI.9 SET-OFF. In addition to any rights and remedies of the
Banks provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document and although
such Obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made by
such Bank; PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application.
Section XI.10 AUTOMATIC DEBITS OF FEES. With respect to any
interest, commitment fee, letter of credit fee or other fee due and payable to
the Agent, the Issuing Bank, BofA or the Arranger under the Loan Documents, the
Company hereby irrevocably authorizes BofA to debit any deposit account of the
Company with BofA in an amount such that the aggregate amount debited from all
such deposit accounts does not exceed such fee or other cost or expense. If
there are insufficient funds in such deposit accounts to cover the amount of the
interest or fees then due, such debits will be reversed (in whole or in part, in
BofA's sole discretion) and such amount not debited shall be deemed to be
unpaid. No such debit under this Section shall be deemed a set-off.
Section XI.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each
Bank shall notify the Agent in writing of any changes in the address to which
notices to the Bank should be directed, of addresses of any Lending Office, of
payment instructions in respect of all payments to be made to it hereunder and
of such other administrative information as the Agent shall reasonably request.
Section XI.12 COUNTERPARTS. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument.
Section XI.13 SEVERABILITY. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions of this Agreement or any instrument or agreement
required hereunder.
Section XI.14 NO THIRD PARTIES BENEFITTED. This Agreement is made
and entered into for the sole protection and legal benefit of the Company, the
Banks, the Agent and the Agent-Related Persons, and their permitted successors
and assigns, and no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection with,
this Agreement or any of the other Loan Documents.
Section XI.15 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES, IF ANY, SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED
THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT
AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE
BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE
AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
Section XI.16 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
COMPANY, THE BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
Section XI.17 ENTIRE AGREEMENT. This Agreement, together with the
other Loan Documents, embodies the entire agreement and understanding among the
Company, the Banks and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in San Francisco by their proper and duly
authorized officers as of the day and year first above written.
ABM INDUSTRIES INCORPORATED: COMPANY
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
------------------------------
Address for notices:
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
AGENT: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
--------------------------------
Title:
-----------------------------
Address for notices of Borrowing,
and other Conversion/Continuation,
operational matters:
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Administrative Services #5596
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for all other notices:
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management #10831
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for payments:
Bank of America NT&SA
ABA 000-000-000
Agency Management Services #5596
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
for credit to Account No. 12334-14305
Reference: ABM Industries
ISSUING BANK: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Bank
By:
--------------------------------
Title:
-----------------------------
Address for notices:
International Trade
Banking Division #5655
000 X. Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
With copies to the Agent
BANKS: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By:
--------------------------------
Title:
--------------------------------
Commitment: $50,000,000
-----------
Address for notices:
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Domestic and Offshore Lending Office:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------
Title:
-----------------------------
Commitment: $25,000,000
-----------
Address For Notices:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx XxXxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Domestic and Offshore Lending Office:
0000 00xx Xxxxxx X.X.
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
UNITED STATES NATIONAL BANK OF OREGON
By:
--------------------------------
Title:
-----------------------------
Commitment: $25,000,000
------------
Address For Notices:
000 X.X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Domestic and Offshore Lending Office:
Same as address for notices
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, doing business
as SEAFIRST BANK
By:
--------------------------------
Title:
-----------------------------
Commitment: $25,000,000
-----------
Address for notices:
000 Xxxxx Xxxxxx
Xxxxx 00
Xxxxxxx, XX 00000
or
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Domestic and Offshore Lending Office:
000 Xxxxx Xxxxxx
Xxxxx 00
Xxxxxxx, XX 00000
SCHEDULE 1 - LETTERS OF CREDIT
PART A - EXISTING BoFA LETTERS OF CREDIT
BENEFICIARY NUMBER LIABILITY AMOUNT
----------- ------ -----------------
ORANGE COUNTY LASB216472 60,000
CNA LASB221830 117,000
WICHITA AIRPORT LASB226265 300,000
CNA LASB221826 1,098,000
CNA LASB221825 403,000
ORLANDO AIRPORT LASB223902 200,000
CIGNA LASB221832 250,000
CNA LASB221829 000,000
XXXX XX XXXXXX XXXX000000 100,000
PART B - EXISTING SEVERAL LETTERS OF CREDIT
BENEFICIARY NUMBER LIABILITY AMOUNT
----------- ------ ----------------
XXXXX XX XXXXX. XXXX000000 28,171,084
CNA LASB226247 10,000,000
CONT'L CASUALATY LASB221882 2,024,000
CNA LASB223142 3,203,000
CONT'L CASUALTY LASB221883 235,000
CNA LASB226246 5,254,000
CNA LASB221881 2,374,000
CNA LASB3002200 UP TO 12,000,000
CNA LASB223143 3,312,000
CNA LASB3002201 UP TO 5,773,000
CONT'L CASUALTY LASB221858 891,000
SCHEDULE 2 - LITIGATION
Section 6.5
A. None other than those disclosed in Company's annual 10K as
of October 31, 1996, page 6.
SCHEDULE 3 - ERISA MATTERS
Section 6.7
Part A:
None
Part B:
None
Part C:
None
Part D:
None
Part E:
None
Part F:
None
Part G:
None
SCHEDULE 4 - ENVIRONMENTAL MATTERS
Section 6.12
No matters to disclose.
SCHEDULE 5 - SUBSIDIARIES
Section 6.16
Part A:
The Company's Subsidiaries are as set forth in Exhibit 22.1 to the
Company's October 31, 1996, Form 10K.
Part B:
None
SCHEDULE 6 - PERMITTED LIENS
Section 8.1
A. Seller carried mortgage on commercial office building used by Company
in Spokane, Washington. 8.75% fixed rate mortgage; fully amortized;
10 years beginning January 2, 1991; payable monthly.
B. Seller carried mortgage on commercial office building used by Company
in Seattle, Washington. 8.75% fixed rate mortgage; fully amortized;
10 years beginning January 2, 1991; payable monthly.
SCHEDULE 7 - PERMITTED INDEBTEDNESS
Section 8.5
A. Mortgage on Spokane, Washington property; approximate balance $58,204.
B. Mortgage on Seattle, Washington property; approximate balance $208,470.
C. Unsecured note to Prudential Life Insurance: 9.35% fixed rate. Monthly
interest payments and annual principal payments of $636,365. Note due
October 1, 1998. Balance $1,272,726.
D. Unsecured note to BofA: 6.7% per annum fixed rate. Annual interest
payments with annual principal payments in varying amounts. Note due
February 15, 2003. Balance: $4,777,054.
NOTICE OF BORROWING
TO THE BANKS AND THE AGENT
REFERENCED BELOW:
This Notice of Borrowing is given pursuant to SECTION 2.3 of that certain Credit
Agreement, dated as of June 25, 1997, as the same may have been amended to the
date hereof (the "Credit Agreement"), among ABM Industries Incorporated, a
Delaware corporation (the "Company"), the several financial institutions from
time to time party thereto (collectively, the "Banks"; individually, a "Bank"),
and Bank of America National Trust and Savings Association, as Agent (as defined
in the Credit Agreement). Terms defined in the Credit Agreement are used herein
with the same meanings.
The undersigned hereby gives the Agent irrevocable notice that the Company
requests a Borrowing under the Credit Agreement as follows:
1. DATE OF BORROWING. The requested date of the proposed Borrowing
is _____________, 19__.
2. DETAILS OF BORROWING. The proposed Borrowing is in the amount of
$_______________ at the following interest rate (check as applicable):
[ ] (A) An Offshore Rate Borrowing for an Interest Period of
____ months expiring on __________.
[ ] (B) A Base Rate Borrowing.
The undersigned hereby certifies that on the date hereof, and on the date of the
proposed Borrowing, all conditions precedent under SECTION 5.1. and SECTION 5.2
of the Credit Agreement to the making of the Loans constituting the proposed
Borrowing are satisfied.
Dated: _________________, 19___.
ABM INDUSTRIES INCORPORATED, a
Delaware corporation
By _______________________________
Title: ___________________________
NOTICE OF CONVERSION/CONTINUATION
TO THE BANKS AND THE AGENT
REFERENCED BELOW:
This Notice of Conversion/Continuation is given pursuant to SECTION 2.4 of that
certain Credit Agreement, dated as of June 25, 1997, as the same may have been
amended to the date hereof (the "Credit Agreement"), among ABM Industries
Incorporated, a Delaware corporation (the "Company"), the several financial
institutions from time to time party thereto (collectively, the "Banks";
individually, a "Bank"), and Bank of America National Trust and Savings
Association, as Agent (as defined in the Credit Agreement). Terms defined in
the Credit Agreement are used herein with the same meanings.
The undersigned hereby gives the Agent irrevocable notice that the Company
requests the [conversion] [continuation] of a Borrowing under the Credit
Agreement as follows:
(a) Convert $____________________ in principal amount of Base Rate
Borrowings on ____________________, 19___, to an Offshore Rate Borrowing; with
an interest period of _____ months and expiring on ____________________, 19___;
(b) Convert $_________________________ in principal amount of
Offshore Rate Borrowings on _______________, 19__ to a Base Rate Borrowing;
(c) Continue as Offshore Rate Borrowings $________________________ in
principal amount of presently outstanding Offshore Rate Borrowings, commencing
on _______________, 19__, with an interest period of _____ months and expiring
on _______________, 19__.
Dated: ______________, 19___.
ABM INDUSTRIES INCORPORATED,
a Delaware corporation
By___________________________________
Title:_______________________________
COMPLIANCE CERTIFICATE
TO THE BANKS AND THE AGENT
REFERENCED BELOW:
The undersigned hereby certifies that:
1. This Compliance Certificate is being delivered pursuant to
SECTION 7.2(a) of that certain Credit Agreement, dated as of June 25, 1997, as
the same may have been amended to the date hereof (the "Credit Agreement"),
among ABM Industries Incorporated, a Delaware corporation (the "Company"), the
several financial institutions from time to time party thereto (collectively,
the "Banks"; individually, a "Bank"), and Bank of America National Trust and
Savings Association, as Agent (as defined in the Credit Agreement). Terms
defined in the Credit Agreement are used herein with the same meanings.
2. The undersigned is a Responsible Officer of the Company with the
title set forth below his signature hereon.
3. The undersigned has reviewed the terms of the Credit Agreement
with a view toward determining whether the Company has complied with the terms
thereof in all material respects, has made, or has caused to be made under the
undersigned's supervision, a review in reasonable detail of the transactions and
condition of the Company and its Subsidiaries as of the fiscal quarter [and
fiscal year] ending __________________, 19__ (the "Determination Date), and the
accompanying financial statements as of such date and for the fiscal quarter
[and fiscal year] then ending, and such review has disclosed that:
(a) Consolidated Net Income for such fiscal quarter was
$_________, and Consolidated Net Income for the preceding fiscal quarter was
$_________, and [complies] [does not comply] with Section 8.14(a) of the Credit
Agreement.
(b) The Fixed Charge Coverage Ratio as of the Determination Date
was _________:1, and [complies] [does not comply] with Section 8.14(b) of the
Credit Agreement.
The detail showing the method of calculation of the foregoing ratios and figures
is set forth in the schedule attached to this certificate.
4. As of the date of this certificate:
(i) the representations and warranties contained in Article VI
of the Credit Agreement are true and correct on and as of such date, as
though made on and as of such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing; and
(iii) there has occurred since the date of financial statements
referenced in SECTION 6.11 of the Credit Agreement, no event or
circumstance that has resulted or could reasonably be expected to result in
a Material Adverse Effect.
I hereby certify the foregoing information to be true and correct in
all material respects and execute this Compliance Certificate on _______, 19__.
______________________________
Title:
of ABM INDUSTRIES INCORPORATED
OPINION OF
COUNSEL FOR COMPANY
[Closing Date]
To the Banks and the Agent
Referenced Below
Ladies and Gentlemen:
We have acted as counsel for ABM Industries Incorporated, a Delaware
corporation ("Company"), in connection with that certain Credit Agreement, dated
as of June 25, 1997, as the same may have been amended to the date hereof (the
"Credit Agreement"), among ABM Industries Incorporated, a Delaware corporation
(the "Company"), the several financial institutions from time to time party
thereto (collectively, the "Banks"; individually, a "Bank"), and Bank of America
National Trust and Savings Association, as Agent (as defined in the Credit
Agreement). Terms defined in the Credit Agreement are used herein with the same
meanings. This opinion is being rendered to you at the request of our clients
pursuant to Section 5.1(d) of the Credit Agreement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. As to various questions of fact material to our
opinion, we have relied upon representations made to us by officers of the
Company. We have discussed the matters addressed in this opinion with
responsible officers of the Company to the extent we have deemed appropriate to
enable us to render this opinion.
Based on the foregoing, we are of the opinion that:
(a) Each of the Company and the Company's Subsidiaries set forth in
the Schedule of Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) The execution, delivery and performance by the Company of the
Credit Agreement, Notes, and the other Loan Documents to which it is a party are
within the corporate powers of the Company, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Company or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company, or result in the creation or imposition of
any Lien on any asset of the Company, or any Subsidiary of the Company.
(c) The Credit Agreement constitutes a valid and binding agreement of
the Company, assuming the valid execution and delivery thereof by the other
parties thereto (other than the Company), enforceable in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency and similar laws affecting the enforcement of creditor's rights
generally and by general principles of equity.
(d) There is no action, suit or proceeding pending against, or to the
best of our knowledge after due inquiry threatened against or affecting the
Company, or any Subsidiary of the Company before any court or arbitrator or any
governmental body, agency or official, in which there is a significant
possibility of an adverse decision which could, result in a Material Adverse
Change, or which in any manner draws into question the validity of the Credit
Agreement, the Notes or any other Loan Document.
(e) The making of the Loans and the application of the proceeds
thereof by the Company as provided in the Credit Agreement do not violate the
Regulation G, T, U or X of the FRB.
(f) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company act of 1940, as amended.
We are members of the Bar of the State of California and the foregoing
opinion is limited to the laws of the State of California, the federal laws of
the United States of America, and the General Corporation Law of the State of
Delaware.
The opinions expressed herein are solely for your benefit in
connection with the above transaction and may not be relied on in any manner or
for any purpose by any other person. Copies may not be furnished to any other
person without our prior written consent, except that you may furnish copies
hereof: (a) to your independent auditors and attorneys; (b) to any governmental
authority having regulatory jurisdiction over you; (c) pursuant to order or
legal process of any court or governmental agency; (d) in connection with any
legal action to which you are a party arising out of the above transactions;
(e) any proposed participant or assignee in any Bank's interest in any
Obligations or Commitment; and (f) any successor to the Agent.
Very truly yours,
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "AGREEMENT") dated as of
_______________, 19__ is made between _______________
______________________________ (the "Assignor") and _____________
______________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement, dated as
of June 25, 1997 among
ABM INDUSTRIES INCORPORATED, a Delaware corporation (the "COMPANY"), the banks
named therein (including the Assignor, the "BANKS"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent (as from time to time amended, restated,
supplemented or otherwise modified, the "CREDIT AGREEMENT"). Terms defined in
the Credit Agreement are used herein with the same meanings;
WHEREAS, as provided under the Credit Agreement, the Assignor has committed
to make committed loans (the "LOANS") to the Company in an aggregate amount not
to exceed ______________________________ ($_______________) (the "AGGREGATE
COMMITMENT");
WHEREAS, [the Assignor has made Loans to the aggregate principal amount of
$_____________________________ to the Company] [no Loans are outstanding under
the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee part of the rights
and obligations of the Assignor under the Credit Agreement, together with a
corresponding portion of each of its outstanding Loans, in an amount equal to
$_______________________ (the "ASSIGNED AMOUNT") on the terms listed on Schedule
I hereto and subject to the conditions set forth herein, and the Assignee wishes
to accept assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) With effect on and after the Effective Date (as defined in Section 5
hereof), the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the Assigned
Amount, which shall be equal to _______________ percent (_____%) (the
"ASSIGNEE'S PERCENTAGE SHARE") of all of the Assignor's rights and
obligations under the Credit Agreement, and any outstanding Loans and L/C
Obligations. The assignment set forth in this Section 1(a) shall be
without recourse to, or representation or warranty (except as expressly
provided in this Agreement) by the Assignor.
(b) With effect on and after the Effective Date, the Assignee shall be a
party to the Credit Agreement and succeed to all of the rights and be
obligated to perform all of the obligations of a Bank under the Credit
Agreement, including the requirements concerning confidentiality, with
Loans equal to the Assigned Amount. The Assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Bank.
2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective
Date in immediately available funds an amount equal to
$______________________________, representing the Assignee's Percentage
Share of the principal amount of all Loans previously made, and currently
owned, by the Assignor to the Company under the Credit Agreement and
outstanding on the Effective Date.
(b) The [Assignor][Assignee] further agrees to pay to the Agent a
processing fee in the amount of $3,500.00.
(c) To the extent payment to be made by the Assignee pursuant to Section
2(a) hereof is not made when due, the Assignor shall be entitled to recover
such amount together with interest thereon at the Federal Funds Rate per
annum accruing from the date such amounts were due. For purposes hereof,
"Federal Funds Rate" shall mean, for any day, the weighted average of the
rate on overnight Federal funds transactions, with members of the Federal
Reserve System, only, arranged by Federal funds brokers, as published as of
such day by the Federal Reserve Bank of New York.
3. REALLOCATION OF PAYMENTS.
Any interest, commissions, fees and other payments accrued to but
excluding the Effective Date with respect to the Loans, shall be for the account
of the Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account of
the Assignee. Each of the Assignor and the Assignee agree that it will hold in
trust for the other party any interest, commissions, fees and other amounts
which it may receive to which the other party is entitled pursuant to the
preceding sentence and pay to the other party any such amounts which it may
receive promptly upon receipt. The Assignor and the Assignee's obligations to
make the payments referred to in this Section 3 are non-assignable.
4. INDEPENDENT CREDIT DECISION.
The Assignee (a) acknowledges that it has received a copy of the
Credit Agreement and the Schedules and Exhibits thereto, and such other
documents and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Agreement; and (b) agrees
that it will, independently and without reliance upon the Assignor, the Agent or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal decisions in
taking or not taking action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) The effective date for this Agreement shall be __________ _____ (the
"EFFECTIVE DATE"); PROVIDED that the following conditions precedent have
been satisfied on or before the Effective Date:
(i) this Agreement shall be executed and delivered by the Assignor
and the Assignee;
(ii) the consent of the Company and the Agent [and the beneficiaries
of any outstanding Several Letters of Credit] required for an
effective assignment of the Assigned Amount by the Assignor to the
Assignee shall have been duly obtained and shall be in full force and
effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due to
the Assignor under this Agreement; and
(iv) the recordation fee referred to in Section 2(b) of this Agreement
and in Section 11.8(a) of the Credit Agreement shall have been paid to
the Agent.
(b) Promptly following the execution of this Agreement, the Assignor shall
deliver to the Agent for acceptance and recording by the Agent, the
notices, agreements or other documents as may be required under the Credit
Agreement.
[6. AGENT [INCLUDE ONLY IF ASSIGNOR IS AGENT].
(a) The Assignee hereby appoints and authorizes the Assignor to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Banks pursuant to the terms
of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.]
7. WITHHOLDING TAX.
The Assignee agrees to comply with Section 4.1(f) of the Credit
Agreement as if the date of this Agreement were the Closing Date of the Credit
Agreement.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any lien, security interest or other
adverse claim; (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to execute
and deliver this Agreement and any other documents required or permitted to
be executed or delivered by it in connection with this Agreement and to
fulfill its obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, delivery and performance
of this Agreement, and apart from any agreements or undertaking or filings
required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Agreement has been duly executed and delivered
by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms
hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Company, any Guarantor
or the performance or observance by the Company, any Guarantor of any of
its respective obligations under the Credit Agreement or any other
instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this Agreement and any other
documents required or permitted to be executed or delivered by it in
connection with this Agreement, and to fulfill its obligations hereunder;
(ii) no notices to, or consents, authorizations or approvals of, any Person
are required (other than any already given or obtained) for its due
execution, delivery and performance of this Agreement; and apart from any
agreements or undertaking or filings required by the Credit Agreement, no
further action by, or notice to, or filing with, any Person is required of
it for such execution, delivery or performance; (iii) this Agreement has
been duly executed and delivered by it and constitutes the legal, valid and
binding obligation of the Assignee, enforceable against the Assignee in
accordance with the terms hereof, except subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is eligible under the Credit
Agreement to be an assignee of the Loans.
9. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agrees to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, including, without limitation, the delivery of any notices or other
documents or instruments to the Company, the Agent or any Guarantor which may be
required in connection with the assignment and acceptance contemplated hereby.
10. INDEMNITY.
The Assignee agrees to indemnify and hold harmless the Assignor
against any and all losses, costs, expenses (including, without limitation,
reasonable attorneys' fees and the allocation of costs and expenses for in-house
counsel) and liabilities incurred by the Assignor in connection with or arising
in any manner from the non-performance by the Assignee of any obligation assumed
by the Assignee under this Agreement.
11. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this Agreement shall be in
writing signed by the parties hereto. No failure or delay by either party
hereto in exercising any right, power or privilege hereunder shall operate
as a waiver thereof any waiver of any breach of the provisions of this
Agreement shall be without prejudice to any rights with respect to any
other or further breach hereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) All communications among the parties or notices in connection herewith
shall be in writing (including facsimile transmission or telex) and
delivered, telexed or telecopied, addressed as follows: (i) if the
Assignor or the Assignee, at their respective addresses set forth on the
signature pages hereof and (ii) if to the Company or the Agent, at their
respective addresses set forth in the Credit Agreement or
any other documents or instruments delivered pursuant thereto. All such
communications and notices shall be effective upon receipt. The Assignee
specifies as its Domestic and Offshore Lending Office(s) the offices set
forth beneath its name on the signature pages hereof.
(d) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation,
execution and performance of this Agreement.
(e) The representations and warranties made herein shall survive the
consummation of the transactions contemplated hereby.
(f) This Agreement shall be binding upon and inure to the benefit of the
Assignor and the Assignee and their respective successors and assigns;
provided, however, that no party shall assign its rights and obligations
hereunder without the prior written consent of the other party and any
purported assignment, absent such consent, shall be void. The preceding
sentence shall not limit the right of the Assignee to assign or participate
all or part of the Assignee's Percentage Share and the Assigned Amount and
any outstanding Loans attributable thereto in the manner contemplated by
the Credit Agreement.
(g) The Assignor may at any time or from time to time grant to others
assignments or participations in the Loans but not in the portions thereof
assigned to the Assignee pursuant to this Agreement.
(h) This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one and
the same instrument.
(i) This Agreement shall be governed by and construed in accordance with
the law of the State of California. The Assignor and the Assignee each
irrevocably submits to the non-exclusive jurisdiction of any California
State or Federal court sitting in the City and County of San Francisco over
any suit, action or proceeding arising out of or relating to this Agreement
and irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such California State or Federal
court. Each party to this Agreement hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding.
(j) This Agreement and any agreement, document or instrument attached
hereto or referred to herein integrate all the terms and conditions
mentioned herein or incidental hereto, constitutes the entire agreement and
understanding between the parties hereto and supersedes any and all prior
agreements and understandings related to the subject matter hereof. In the
event of any conflict between the terms, conditions and provisions of this
Agreement and any such agreement, document or instrument, the terms,
conditions and provisions of this Agreement shall prevail.
(k) In the event of any inconsistency between the provisions of this
Agreement and Schedule I hereto, this Agreement shall control. Headings
are for reference only and are to be ignored in interpreting this
Agreement.
(l) The illegality or unenforceability of any provision of this Agreement
or any instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions
of this Agreement or any instrument or agreement required hereunder.
(m) The Assignor and the Assignee each hereby knowingly, voluntarily and
intentionally waive any rights they may have to a trial by jury in respect
of any litigation based hereon, or arising out of, under, or in connection
with this Agreement, the Credit Agreement, any related documents and
agreements or any course of conduct, course of dealing, statements (whether
oral or written).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
[______________________________]
Assignor
By: ____________________________
Title: _________________________
________________________________
Assignee
By: ____________________________
Title: _________________________
SCHEDULE I
to
ASSIGNMENT AND ACCEPTANCE AGREEMENT
1. COMPANY:
2. DATE OF CREDIT AGREEMENT:
3. ASSIGNOR:
4. ASSIGNEE:
5. DATE OF ASSIGNMENT AGREEMENT:
6. EFFECTIVE DATE:
7. ASSIGNEE'S SHARE REVOLVING COMMITMENT
(a) Assignee's
Percentage
Share
(b) Assigned Amount
8. FEES: PAYMENT BY COMPANY
TO ASSIGNEE
Facility Fee
9. INTEREST: PAYMENT BY COMPANY
TO ASSIGNEE
(i) Reference Rate
Loan
(ii) Offshore Rate
Loan
10. PAYMENT INSTRUCTIONS:
Assignor:
Assignee:
11. Assignee's Notice:
INSTRUCTIONS
12. OTHER INFORMATION:
TO THE AGENT BELOW NAMED
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of [__________], 1997 (the
"CREDIT AGREEMENT") between ABM INDUSTRIES INCORPORATED (the "COMPANY"), the
Banks referred to therein, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent. Terms defined in the Credit Agreement are used herein as
therein defined.
1. We hereby give you notice of, and request the consent of the Company
and the Agent to, the assignment by _____________ (the "ASSIGNOR") to __________
(the "ASSIGNEE") of _____% of the right, title and interest of the Assignor in
and to the Credit Agreement and all outstanding Loans made by the Assignor.
2. The Assignee agrees that, upon receiving the consent of the Company
and the Agent to such assignment and from and after the Assignment Effective
Date, the Assignee will be bound by the terms of the Credit Agreement, with
respect to the interest in the Credit Agreement assigned to it as specified
above, as fully and to the same extent as if the Assignee were the Bank
originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the assignee:
(A) Offshore Lending Office:
Assignee name: ____________________
Address: __________________________
Attention: ________________________
Telephone: (_____) ________________
Telecopier: (_____) _______________
Telex (Answerback): _______________
(B) Domestic Lending Office:
Assignee name: ____________________
Address: __________________________
____________________________________
____________________________________
Attention: ________________________
Telephone: (_____) ________________
Telecopier: (_____) _______________
Telex (Answerback): _______________
(C) Notice Address:
Assignee name: ____________________
Address: __________________________
____________________________________
____________________________________
Attention: ________________________
Telephone: (_____) ________________
Telecopier: (_____) _______________
Telex (Answerback): _______________
(D) Payment Instructions:
Account No.: ______________________
At: ______________________
______________________
______________________
Reference: ______________________
Attention: ______________________
IN WITNESS WHEREOF, the Assignor and the Assignor have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[Name of Assignor]
By:______________________________
Title:
[Name of Assignee]
By:______________________________
Title:
The Undersigned hereby consent to the above Assignment and Acceptance
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:______________________________
Title:___________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Bank
By:______________________________
Title:___________________________
_________________________________
as beneficiary under a Several Letter of Credit
By:______________________________
Title:___________________________
NOTE
_______ __, 19__
1. PROMISE TO PAY. FOR VALUE RECEIVED, ABM INDUSTRIES INCORPORATED,
a Delaware corporation (the "Company"), promises to pay to
__________________________________________ (the "Bank"), or order: (a) the
unpaid principal amount of each Loan made by the Bank to the Company in the
manner and on the date(s) provided for in that certain Credit Agreement, dated
as of June 25, 1997 (as amended, the "Credit Agreement"), among the Company, the
several financial institutions from time to time party thereto (collectively,
"Banks"), and Bank of America National Trust and Savings Association, as Agent
(as defined in the Credit Agreement); (b) interest on the outstanding principal
amount of each such Loan in the manner, on the date(s), and at the rate(s)
provided for in the Credit Agreement; and (c) such other charges and fees with
respect to such Loans (together with interest thereon) as are provided for in
the Credit Agreement in the manner and on the dates provided for therein. All
payments to be made hereunder shall be payable in Dollars in immediately
available funds at the place and by the time provided for in the Credit
Agreement.
2. DEFINED TERMS. All terms used herein which are defined in the
Credit Agreement shall have the meaning set forth therein, unless specifically
defined herein.
3. INCORPORATION. This Note is one of the promissory notes defined
in the Credit Agreement as the "Note" and is subject to, and entitled to the
benefits of, the terms and provisions of the Credit Agreement. Reference is
made to the Credit Agreement for provisions for the repayment, prepayment, and
acceleration of the maturity hereof, all of which terms are hereby incorporated
herein by this reference.
THIS NOTE IS SUBJECT TO THE PROVISIONS OF SECTIONS 11.15 AND 11.16 OF
THE CREDIT AGREEMENT RELATING TO GOVERNING LAW AND JURISDICTION AND WAIVER OF
JURY TRIAL; ALL SUCH PROVISIONS ARE HEREBY INCORPORATED HEREIN IN FULL.
ABM INDUSTRIES INCORPORATED,
a Delaware corporation
By
----------------------------------
Title:
------------------------------
The Banks listed on
Schedule 1 hereto
(the "L/C Banks") Irrevocable Several Standby Credit
Date of Issue: Date and Place of Expiry:
___________, 19__ ___________, 19__
San Francisco, California
Applicant:
ABM Industries Incorporated
___________________________
___________________________
Beneficiary: Amount: Up to an aggregate of
_______________________ ______________________________
_______________________ United States Dollars
_______________________ (US $_______________________)
Ladies and Gentlemen:
We hereby establish our Irrevocable Several Letter of Credit No.
_______________ ("Letter of Credit") in favor of ___________________________
("Beneficiary") in the amount of ___________________________________________(US
$________________) for the account of ABM Industries Incorporated ("ABM").
Draws may be made under this Letter of Credit on or after ___________,
19__, but not later than the Expiration Date (as below defined) against
presentation of (1) your sight draft, drawn on the L/C Banks, in the form of
Annex 2, (2) a drawing request signed by a purported authorized officer of
Beneficiary, in the form of Annex 1 (dated, with the blanks filled in), and
(3) in the case of a drawing which exhausts the liability amount of this Letter
of Credit, this Letter of Credit.
This Letter of Credit expires one year from the date hereof; PROVIDED that
this Letter of Credit shall be automatically extended for additional one year
periods from the date of any present or future expiration date unless the Paying
Agent, at the request of any L/C Bank, has notified you not less than 60 days
prior to the next expiration date that such expiration date shall not be
extended (the date on which this Several Letter of Credit ultimately expires
being the "Expiration Date").
The above drawing request and all communications with respect to this
Letter of Credit shall be in writing, addressed to the L/C Banks in care of Bank
of America National Trust and Savings Association, Global Agency #5596, 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: _______________,
telecopier number _______________, in its capacity as Paying Agent hereunder
("Paying Agent"), and presented to us by delivery in person or by telecopier
(confirmed by telephone advice to the Paying Agent at the following number:
(000) 000-0000 or (000) 000-0000) at such address, provided that the original of
the above drawing request or such communications, as the case may be, shall be
sent to us at such address by prepaid overnight courier for receipt by the
Paying Agent within two (2) Business Days of the date of any such facsimile
transmission.
The L/C Banks shall be entitled to conclusively rely for all purposes upon
the demand for payment or any other communication made by you hereunder by
telecopier (including, without limitation, each draft and document presented in
connection therewith) notwithstanding any discrepancies between such demand for
payment made by telecopier and the drafts or documents subsequently received by
us from you with respect to such demand for payment or other communication. All
directions, demands and correspondence regarding this Letter of Credit shall be
sent at the risk of ABM. None of the Paying Agent or the L/C Banks shall be
liable or in any way responsible for any inaccuracy, error, interruption, delay
or other irregularity in transmission, delivery or teletransmission, nor shall
any of them be liable or in any way responsible for the sufficiency,
correctness, genuineness, falsification or legal effect or authority of any
person presenting any documents under this Letter of Credit if such documents
appear on their face to be in order.
If a drawing request is presented in compliance with the terms of this
Letter of Credit to us at such address by 8:00 a.m. (San Francisco time) on any
Business Day, each L/C Bank severally agrees that payment will be made on such
Business Day by making payment of each such L/C Bank's Commitment Percentage (as
hereinafter defined) times the amount of the drawing request available to the
Paying Agent. And if such drawing request is so presented to us after 8:00 a.m.
(San Francisco time) on any Business Day, payment will be made on the following
Business Day by our making payment as aforesaid available to the Paying Agent.
Paying Agent shall then disburse to the account of Beneficiary on the Business
Day on which payment is made available to it the amount which it receives from
the L/C Banks. If any instructions accompanying the drawing request under this
Letter of Credit request that payment is to be made by transfer to an account
with the Paying Agent or at another bank, the Paying Agent and/or such other
bank may rely on an account number specified in such instructions, even if the
account number identifies a person or entity different from the intended payee.
As used in this Letter of Credit, "Business Day" means any day other than a
Saturday, Sunday or other day on which commercial banks located in Los Angeles,
California, San Francisco, California or New York, New York are required or
authorized by law to remain closed.
In the event that a drawing request is unacceptable to any L/C Bank, such
L/C Bank shall provide prompt notice to the Beneficiary stating the reasons
therefor to the following address:
____________________________
____________________________
____________________________
Attention: _________________
For purposes of Article 14 of the UCP (as hereinafter defined), the
documents presented to such L/C Bank shall be deemed to be the copies, furnished
by the Paying Agent to such L/C Bank (including telefacsimile copies), of the
documents presented to the Paying Agent by the Beneficiary hereunder.
This Letter of Credit (including Schedule 1 hereto, which is incorporated
herein by reference as though fully set forth herein) sets forth in full the
terms of our undertaking and this undertaking shall not be in any way modified,
amended, limited or amplified by reference to any document, instrument or
agreement referred to herein, except only the drawing request and certificate
referred to herein and the UCP; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument, or agreement except
for such drawing requests and certificates.
This Letter of Credit is not transferable.
Multiple drawings under this Letter of Credit are permitted, and upon
payment of any such drawing, the amount remaining available for drawing under
this Letter of Credit shall be correspondingly and automatically reduced by the
amount of such payment.
All banking charges are for the account of ABM.
By acceptance of this Letter of Credit, Beneficiary agrees that neither the
issuance of this Letter of Credit nor the presentation of any items hereunder
shall impose any liability upon Paying Agent. Beneficiary further
agrees that (i) the liability of the L/C Banks under this Letter of Credit shall
be several, and not joint, (ii) each L/C Bank shall be liable with respect to
any draw hereunder solely in an amount equal to (A) the percentage ("Commitment
Percentage") set forth opposite such L/C Bank's name under the column
"Commitment Percentage" in Schedule 1 hereto, times (B) the amount of such draw,
provided that no L/C Bank shall be required under any circumstances to pay an
amount greater than the amount of its Commitment, as set forth opposite such L/C
Bank's name under the column "Commitment" in Schedule 1 hereto, and (iii) no L/C
Bank shall have any liability for any failure by any other L/C Bank to make
payment under this Letter of Credit.
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under Several Letter of Credit (Bank of America NT&SA, as
Paying Agent) Number __________ dated ___________, 19__"
This Letter of Credit shall not be amended except with the written
concurrence of Beneficiary, ABM, the Paying Agent and the L/C Banks.
This Letter of Credit expires on the Expiration Date at the offices of the
Paying Agent at 5:00 p.m. San Francisco time.
We hereby severally, and not jointly, engage with you that a drawing
request drawn strictly in compliance with the terms of this Letter of Credit
shall meet with due honor upon presentation.
This Letter of Credit may be signed by each L/C Bank on separate
counterpart signature pages, all of which, when taken together with this Letter
of Credit, shall constitute but one and the same instrument.
This Letter of Credit shall be governed by and construed in accordance with
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication Number 500 (the "UCP"), and, to
the extent not inconsistent therewith, the laws of the State of California. If
the Expiration Date occurs on a day (i) which is not a day on which the Paying
Agent is open to conduct its business (a "Banking Day") for any reason referred
to in Article 17 of the UCP, or (ii) which is not a Banking Day for any reason
other than those referred to in such Article 17 and the next day which would
normally be a Banking Day is not a Banking Day for any reason referred to in
such Article 17, the Expiration Date shall be automatically extended to the
Banking Day which is 30 Banking Days after the Expiration Date. If, for any
reason referred to in such Article 17, any L/C Bank is not open to conduct its
letter of credit business on any day on which payment is required from such L/C
Bank hereunder, the date on which such payment is required shall be extended
until the first day on which such L/C Bank is open to conduct its letter of
credit business.
SCHEDULE 1
TO IRREVOCABLE SEVERAL LETTER OF CREDIT NO. ________
L/C BANKS
COMMITMENT
L/C BANK COMMITMENT PERCENTAGE
-------- ---------- ----------
[_____________________] $ __________ __._________%
[_____________________] $ __________ __._________%
[_____________________] $ __________ __._________%
[_____________________] $ __________ __._________%
[_____________________] $ __________ __._________%
[_____________________] $ __________ __._________%
$___________ 100.000000000%
ANNEX 1
"Drawn under Several Letter of Credit
(Bank of America NT&SA, as Paying Agent)
Number _________ dated _____________, 19__"
DRAWING REQUEST
To the L/C Banks
c/o Bank of America National Trust and Savings Association
Global Agency #5596
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: ____________________
Ladies and Gentlemen:
The undersigned authorized officer of the undersigned
____________________________ ("Beneficiary"), on behalf of Beneficiary, hereby
draw on Several Letter of Credit (Bank of America NT&SA, as Paying Agent) Number
_________ dated ___________, 19__ (the "Letter of Credit"), issued by you in
favor of Beneficiary. Any capitalized term used herein shall have its
respective meaning as set forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
1.(1) This drawing in the amount of US$_____________ [not more than
US$_______________.00] is being made pursuant to the Letter of Credit issued to
Beneficiary pursuant to ______________
________________________________________________________________________________
________________________________________________________________________________
___________________________________________________________________________; and
PARAGRAPHS 1 AND 2 ARE INTENDED TO BE ADOPTED TO EFFECT THE NATURE OF THE
OBLIGATION THE SEVERAL LETTER OF CREDIT IS INTENDED TO SUGGEST. LANGUAGE
INSERTED IN THE PARAGRAPHS SHALL BE ACCEPTABLE TO AGENT AND MAJORITY BANKS.
2.1 Beneficiary has the unconditional right to receive payment of
$__________ under [___________________________________
________________________________________________________________________________
____________________________________________], and such payment has not been
received by Beneficiary.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this ____ day of __________, 199__.
__________________________________
By _______________________________
Title: __________________________,
Authorized Officer
ANNEX 2
SIGHT DRAFT
__________, 199__
To the L/C Banks under
Several Letter of Credit
(Bank of America NT&SA, as Paying Agent)
Number ___________ dated ____________, 19__,
c/o Bank of America National Trust and Savings Association,
Global Agency #5596, in its capacity as Paying Agent
At sight, pay to the order of ourselves U.S.$____________________.
[_____________________________]
By _______________________________
