EXHIBIT 10.3
EXECUTION COPY
CREDIT AGREEMENT
Dated as of January 25, 2002
among
LONGVIEW FIBRE COMPANY
as Borrower
THE LENDERS
FROM TIME TO TIME PARTY HERETO
and
BANK OF AMERICA, N.A.
as Administrative Agent
with
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
THE BANK OF NOVA SCOTIA
and
XXXXX FARGO BANK, N.A.
as Co-Syndication Agents
and
NORTHWEST FARM CREDIT SERVICES, PCA
as Documentation Agent
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS 1
1.1 Definitions. 1
1.2 Computation of Time Periods. 25
1.3 Accounting Terms. 25
SECTION 2 CREDIT FACILITIES 26
2.1 Revolving Loans. 26
2.2 Letter of Credit Subfacility. 28
2.3 Swingline Loans and Procedure. 34
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES 36
3.1 Default Rate. 36
3.2 Extension and Conversion. 36
3.3 Prepayments. 37
3.4 Termination and Reduction of Revolving Committed Amount. 39
3.5 Fees. 40
3.6 Capital Adequacy. 41
3.7 Limitation on Eurodollar Loans. 41
3.8 Illegality. 41
3.9 Requirements of Law. 42
3.10 Treatment of Affected Loans. 43
3.11 Taxes. 43
3.12 Compensation. 45
3.13 Pro Rata Treatment. 46
3.14 Sharing of Payments. 47
3.15 Payments, Computations, Etc. 48
3.16 Evidence of Debt. 49
3.17 Replacement of Affected Lenders. 50
SECTION 4 CONDITIONS 51
4.1 Closing Conditions. 51
4.2 Conditions to all Extensions of Credit. 53
SECTION 5 REPRESENTATIONS AND WARRANTIES 54
5.1 Financial Condition. 54
5.2 No Material Change. 55
5.3 Organization and Good Standing. 55
5.4 Power; Authorization; Enforceable Obligations. 55
5.5 No Conflicts. 56
5.6 No Default. 56
5.7 Ownership. 56
5.8 Indebtedness. 56
5.9 Litigation. 56
5.10 Taxes. 56
5.11 Compliance with Law. 57
5.12 ERISA. 57
5.13 Corporate Structure; Capital Stock, Etc. 58
5.14 Governmental Regulations, Etc. 59
5.15 Purpose of Loans and Letters of Credit. 59
5.16 Environmental Matters. 60
5.17 Intellectual Property. 61
5.18 Solvency. 61
5.19 Investments. 61
5.20 Disclosure. 61
5.21 No Burdensome Restrictions. 61
5.22 Brokers' Fees. 61
5.23 Labor Matters. 61
SECTION 6 AFFIRMATIVE COVENANTS 62
6.1 Information Covenants. 62
6.2 Preservation of Existence and Franchises. 65
6.3 Books and Records. 65
6.4 Compliance with Law. 65
6.5 Payment of Taxes and Other Claims. 65
6.6 Insurance. 66
6.7 Maintenance of Property; Management of Timberlands. 66
6.8 Use of Proceeds. 66
6.9 Audits/Inspections. 67
6.10 Financial Covenants. 67
6.11 Notice of Ratings Change. 67
6.12 Performance of Obligations. 68
SECTION 7 NEGATIVE COVENANTS 68
7.1 Indebtedness. 68
7.2 Liens. 69
7.3 Nature of Business. 71
7.4 Consolidation, Merger, Dissolution, etc. 72
7.5 Asset Dispositions. 72
7.6 Investments. 73
7.7 Restricted Payments. 74
7.8 Limitation on Actions with Respect to Other Indebtedness. 75
7.9 Transactions with Affiliates. 76
7.10 Fiscal Year; Organizational Documents. 76
7.11 Limitation on Restricted Actions. 77
7.12 Ownership of Subsidiaries. 77
7.13 Sale Leasebacks. 77
7.14 No Further Negative Pledges. 77
7.15 Operating Lease Obligations. 78
7.16 Subsidiaries. 78
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SECTION 8 EVENTS OF DEFAULT 78
8.1 Events of Default. 78
8.2 Acceleration; Remedies. 81
SECTION 9 AGENCY PROVISIONS 82
9.1 Appointment and Authorization of Agent. 82
9.2 Delegation of Duties. 82
9.3 Liability of Agent. 83
9.4 Reliance by Agent. 83
9.5 Notice of Default. 84
9.6 Credit Decision; Disclosure of Information by Agent. 84
9.7 Indemnification of Agent. 85
9.8 Agent in its Individual Capacity. 85
9.9 Successor Agent. 85
9.10 Other Agents; Lead Managers. 86
SECTION 10 MISCELLANEOUS 86
10.1 Notices. 86
10.2 Right of Set-Off; Adjustments. 88
10.3 Successors and Assigns. 88
10.4 No Waiver; Remedies Cumulative. 92
10.5 Expenses; Indemnification. 93
10.6 Amendments, Waivers and Consents. 94
10.7 Counterparts. 96
10.8 Headings. 96
10.9 Survival. 96
10.10 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial. 96
10.11 Severability. 97
10.12 Entirety. 97
10.13 Binding Effect; Termination. 98
10.14 Confidentiality. 98
10.15 Source of Funds. 99
10.16 Regulation D. 99
10.17 Conflict. 100
SCHEDULES
Schedule 2.1(a) Lenders
Schedule 2.2(a) Existing Letters of Credit
Schedule 2.2(l) Reimbursement Agreements
Schedule 5.4 Required Consents, Authorizations, Notices and Filings
Schedule 5.9 Litigation
Schedule 5.12 ERISA
Schedule 5.13 Subsidiaries
Schedule 5.16 Environmental Disclosures
Schedule 6.6 Insurance
Schedule 7.1 Indebtedness
Schedule 7.2 Liens
Schedule 7.6 Investments
EXHIBITS
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(b) Form of Swingline Loan Request
Exhibit 2.3(e) Form of Swingline Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 6.1(c) Form of Officer's Compliance Certificate
Exhibit 10.3 Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 25, 2002 (as amended, modified,
restated or supplemented from time to time, the "Credit Agreement"), is by and
among LONGVIEW FIBRE COMPANY, a Washington corporation (the "Borrower"), the
Lenders (as defined herein) and BANK OF AMERICA, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide revolving loans and
letters of credit in an aggregate amount of up to $250,000,000 (the "Credit
Facilities") for the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested Credit Facilities
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the meanings
specified below unless the context otherwise requires:
"Acquisition", by any Person, means the acquisition by such Person of all of the
Capital Stock or all or substantially all of the Property of another Person or a
division or business unit thereof, whether or not involving a merger or
consolidation with such other Person.
"Adjusted Base Rate" means the Base Rate plus the Applicable Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the Applicable
Percentage.
"Affiliate" means, with respect to any Person, any other Person (i) directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person or (ii) directly or indirectly owning or holding twenty
percent (20%) or more of the Capital Stock in such Person. For purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agency Services Address" means Bank of America, N.A., Agency Administration
Services #5596, Mail Code: CA4-706-05-09, 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxx, XX 00000, Attention: Xxxx Xxxxxx or such other address as may be
identified by written notice from the Agent to the Borrower.
"Agent" shall have the meaning assigned to such term in the heading hereof,
together with any successors or assigns.
"Agent-Related Persons" means the Agent (including any successor administrative
agent), together with its Affiliates (including, in the case of Bank of America
in its capacity as the Agent, Banc of America Securities LLC), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
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"Agent's Fee Letter" means that certain letter agreement, dated as of October 3,
2001 between the Agent and the Borrower, as amended, modified, restated or
supplemented from time to time.
"Applicable Lending Office" means, for each Lender, the office of such Lender
(or of an Affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice as the office by which its
Eurodollar Loans are made and maintained.
"Applicable Percentage" means, for purposes of calculating the applicable
interest rate for any day for any Revolving Loan, the applicable rate of the
Unused Fee for any day for purposes of Section 3.5(a) or the applicable rate of
the Letter of Credit Fee for any day for purposes of Section 3.5(b), the
appropriate applicable percentage corresponding to the Funded Indebtedness to
Capitalization Ratio in effect as of the most recent Calculation Date:
Applicable Percentages
Funded For For For Letter For Unused
Pricing Indebtedness to Eurodollar Base Rate of Credit Fee
Level Capitalization Ratio Loans Loans Fee
I <35.0% 1.625% 0.375% 1.625% 0.45%
II <40.0% but > 35.0% 2.00% 0.75% 2.00% 0.50%
III <50.0% but > 40.0% 2.25% 1.00% 2.25% 0.55%
IV <60.0% but > 50.0% 2.50% 1.25% 2.50% 0.60%
V >60.0% 2.875% 1.625% 2.875% 0.65%
The Applicable Percentages shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five (5) Business Days after the date by which
the Borrower is required to provide the officer's certificate in accordance with
the provisions of Section 6.1(c) for the most recently ended fiscal quarter of
the Consolidated Parties; provided, however, that (i) the initial Applicable
Percentages shall be based on Pricing Level IV (as shown above) and shall remain
at Pricing Level IV until the Calculation Date relating to the fiscal quarter of
the Consolidated Parties ending on January 31, 2002 on and after which time the
Pricing Level shall be determined by the Funded Indebtedness to Capitalization
Ratio as of the last day of the most recently ended fiscal quarter of the
Consolidated Parties preceding the applicable Calculation Date and (ii) if the
Borrower fail to provide the officer's certificate to the Agency Services
Address as required by Section 6.1(c) for the last day of the most recently
ended fiscal quarter of the Consolidated Parties preceding the applicable
Calculation Date, the Applicable Percentage from such Calculation Date shall be
based on Pricing Level V until such time as an appropriate officer's certificate
is provided, whereupon the Pricing Level shall be determined by the Funded
Indebtedness to Capitalization Ratio as of the last day of the most recently
ended fiscal quarter of the Consolidated Parties preceding such Calculation
Date. Each Applicable Percentage shall be effective from one Calculation Date
until the next Calculation Date. Any adjustment in the Applicable Percentages
shall be applicable to all existing Loans and Letters of Credit as well as any
new Loans and Letters of Credit made or issued.
"Application Period" means, in respect of any Asset Disposition, the period of
360 days (or such earlier date on which an Event of Default shall have occurred
or as provided for reinvestment of the proceeds thereof under the Senior
Subordinated Note Indenture), following the consummation of such Asset
Disposition.
"Approved Fund" means any Fund that is administered or managed by (a) a
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Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Asset Disposition" means any disposition (including pursuant to a Sale and
Leaseback Transaction) of any or all of the Property (including without
limitation the Capital Stock of a Subsidiary) of any Consolidated Party whether
by sale, lease, licensing, transfer or otherwise, but other than pursuant to any
casualty or condemnation event; provided, however, that (i) the term "Asset
Disposition" shall be deemed to include any "Asset Sale" (or any comparable
term) under, and as defined in, the Senior Subordinated Note Indenture or the
documents evidencing or governing any Subordinated Indebtedness, (ii) an Equity
Issuance shall not constitute an Asset Disposition and (iii) a sale of
inventory, electricity, timber or other assets in the ordinary course of
business shall not constitute an Asset Disposition.
"Asset Disposition Prepayment Event" means, with respect to any Asset
Disposition, the failure of the Borrower to apply (or cause to be applied) the
Net Cash Proceeds of such Asset Disposition to Eligible Reinvestments during the
Application Period for such Asset Disposition to the extent such Net Cash
Proceeds exceed $5,000,000.
"Assignment and Acceptance" means an Assignment and Acceptance substantially in
the form of Exhibit 10.3.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence of any of
the following: (i) the entry of a decree or order for relief by a court or
governmental agency in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the appointment
by a court or governmental agency of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or the ordering of the winding up or
liquidation of its affairs by a court or governmental agency; or (ii) the
commencement against such Person of an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or of
any case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case, proceeding
or other action shall remain undismissed for a period of sixty (60) consecutive
days, or the repossession or seizure by a creditor of such Person of a
substantial part of its Property; or (iii) such Person shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or the
taking possession by a receiver, liquidator, assignee, secured creditor,
custodian, trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the benefit
of creditors; or (iv) such Person shall be unable to, or shall admit in writing
its inability to, pay its debts generally as they become due.
"Base Rate" means, for any day, a fluctuating rate per annum equal to
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the higher of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
or (b) the Prime Rate in effect on such day.
"Base Rate Loan" means any Loan bearing interest at a rate determined by
reference to the Base Rate.
"Borrower" means the Person identified as such in the heading hereof, together
with any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or other day on which
commercial banks in San Francisco, California or New York, New York are
authorized or required by law to close, except that, when used in connection
with a Eurodollar Loan, such day shall also be a day on which dealings between
banks are carried on in Dollar deposits in London, England.
"Businesses" means, at any time, a collective reference to the businesses
operated by the Consolidated Parties at such time.
"Calculation Date" shall have the meaning assigned to such term in the
definition of "Applicable Percentage" set forth in this Section 1.1.
"Capital Lease" means, as applied to any Person, any lease of any Property
(whether real, personal or mixed) by that Person as lessee which, in accordance
with GAAP, is required to be accounted for as a capital lease on the balance
sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means, as at any date, (a) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered
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under the Investment Company Act of 1940, as amended, which are administered by
reputable financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the following: (i) any
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in
Rule l3d-3 under the Securities Exchange Act of 1934) of more than 35% of then
outstanding Voting Stock of the Borrower; (ii) the Borrower shall merge or
consolidate with any Person other than in a transaction permitted under Section
7.4; (iii) Continuing Directors shall fail to constitute a majority of the
members of the board of directors of the Borrower; (iv) any Asset Disposition
shall be made that (of itself or when combined with any or all other Asset
Dispositions) constitutes a sale of all or substantially all of the assets of
the Borrower and its Subsidiaries, taken as a whole; (v) any event shall occur
that constitutes a "Change of Control" (or any comparable term) under, and as
defined in, the documents evidencing or governing any Subordinated Indebtedness;
or (vi) any event shall occur that requires the Borrower or any Subsidiary to
repay, redeem, or repurchase (or to offer to repay, redeem or repurchase) any
Indebtedness outstanding in a principal amount in excess of $20,000,000 by
reason of any change of ownership or control affecting the Borrower or such
Subsidiary. "Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor
statute thereto, as interpreted by the rules and regulations issued thereunder,
in each case as in effect from time to time. References to sections of the Code
shall be construed also to refer to any successor sections.
"Commitment" means (i) with respect to each Lender, the Revolving Commitment of
such Lender, (ii) with respect to the Issuing Lender, the LOC Commitment and
(iii) with respect to the Swingline Lender, the Swingline Commitment.
"Compensation Period" shall have the meaning set forth in Section
3.13(c)(ii)(B).
"Consolidated Capital Expenditures" means, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated Parties on a
consolidated basis, all capital expenditures, as determined in accordance with
GAAP, including, without limitation, those capital expenditures related to
timberland operations; provided, however, that Consolidated Capital Expenditures
shall not include Eligible Reinvestments made with proceeds of any Involuntary
Disposition.
"Consolidated Cash Taxes" means, as of any date for the four fiscal quarter
period ending on such date with respect to the Consolidated Parties on a
consolidated basis, the aggregate of all income taxes paid in cash during such
period (irrespective of when such taxes were accrued), as determined in
accordance with GAAP.
"Consolidated EBITDDA" means, as of any date for the four fiscal quarter period
ending on such date with respect to the Consolidated Parties on a consolidated
basis, the sum of (i) Consolidated Net Income, plus (ii) an amount which, in the
determination of Consolidated Net Income, has been deducted for (A) Consolidated
Interest Expense, (B) income taxes and (C) depreciation, depletion and
amortization expense, all as determined in accordance with GAAP.
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"Consolidated Interest Expense" means, as of any date for the four
fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, interest expense
(including the amortization of debt discount and premium, the interest
component under Capital Leases, the implied interest component under
Synthetic Leases and capitalized interest), as determined in accordance
with GAAP.
"Consolidated Net Income" means, as of any date for the applicable period ending
on such date with respect to the Consolidated Parties on a consolidated basis,
net income (excluding extraordinary items) after interest expense, income taxes
and depreciation and amortization, all as determined in accordance with GAAP (it
being understood that extraordinary items, if any, shall be excluded only to the
extent the Borrower's accountants have concurred with the treatment of such
items as "extraordinary" in accordance with GAAP and such items have been
disclosed in the Borrower's financial statements filed with the Securities and
Exchange Commission).
"Consolidated Net Worth" means, as of any date with respect to the Consolidated
Parties on a consolidated basis, shareholders' equity or net worth, as
determined in accordance with GAAP.
"Consolidated Parties" means a collective reference to the Borrower and its
Subsidiaries, and "Consolidated Party" means any one of them.
"Consolidated Tangible Net Worth" means, as of any date, with respect to the
Consolidated Parties on a consolidated basis, (a) the total assets of the
Consolidated Parties at such date as set forth on a consolidated balance sheet
of the Consolidated Parties prepared in accordance with GAAP (but excluding
therefrom for the purposes hereof, capitalized interest, debt discount and
expense, goodwill, patents, trademarks, copyrights, franchises, licenses,
amounts due from officers and directors, shareholders and Affiliates of the
Borrower and any other items which would be treated as intangibles under GAAP)
less (b) the total liabilities of the Consolidated Parties at such date as set
forth on a consolidated balance sheet of the Consolidated Parties prepared in
accordance with GAAP. "Consolidated Total Capitalization" means, as of any date
of determination with respect to the Consolidated Parties on a consolidated
basis, (i) Funded Indebtedness of the Consolidated Parties on a consolidated
basis as of such date plus (ii) Consolidated Net Worth of the Consolidated
Parties on a consolidated basis as of such date.
"Continue", "Continuation" and "Continued" shall refer to the continuation
pursuant to Section 3.2 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period.
"Continuing Director" means, as of any date of determination, any member of the
board of directors of the Borrower who (x) was a member of the board of
directors of the Borrower as of the Closing Date or (y) was nominated for
election or elected to such board of directors with the approval of a majority
of the Continuing Directors who were members of such board at the time of such
nomination or election.
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant to
Section 3.2 or Sections 3.7 through 3.12, inclusive, of a Base Rate Loan into a
Eurodollar Loan.
"Credit Documents" means a collective reference to this Credit Agreement, the
Notes, the LOC Documents and the Agent's Fee Letter (in each case as the same
may be amended, modified, restated, supplemented,
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extended, renewed or replaced from time to time), and "Credit Document" means
any one of them.
"Credit Facilities" shall have the meaning assigned to such term in the recitals
hereto.
"Debt Issuance" means the issuance by any Consolidated Party of any Indebtedness
of the type referred to in clause (a) or (b) of the definition thereof set forth
in this Section 1.1, other than any Indebtedness issued under this Credit
Agreement and the Senior Subordinated Notes, which would result, upon giving
effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the
concurrent retirement of any other Indebtedness of any Consolidated Party, in
the Borrower being out of compliance with the financial covenants set forth in
Section 6.10(a)-(c).
"Debt Issuance Prepayment Event" means the receipt by any Consolidated Party of
proceeds from any Debt Issuance.
"Default" means any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, as determined by the
Agent, (a) has failed to make a Loan or purchase a Participation Interest
required pursuant to the term of this Credit Agreement within one Business Day
of when due, (b) other than as set forth in (a) above, has failed to pay to the
Agent or any Lender an amount owed by such Lender pursuant to the terms of this
Credit Agreement within one Business Day of when due, unless such amount is
subject to a good faith dispute or (c) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or with respect to which (or
with respect to any of the assets of which) a receiver, trustee or similar
official has been appointed.
"Dollars" and "$" means dollars in lawful currency of the United States.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an
Approved Fund and (iv) any other Person (other than a natural Person) approved
by the Agent and, unless (x) such Person is taking delivery of an assignment in
connection with physical settlement of a credit derivatives transaction or (y) a
Default or an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed); provided,
however, that neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Eligible Reinvestment" means (i) any acquisition (whether or not constituting a
capital expenditure, but not constituting an Acquisition) of assets or any
business (or any substantial part thereof) used or useful in the same or a
similar line of business as the Borrower and its Subsidiaries were engaged in on
the Closing Date (or any reasonable extensions or expansions thereof) and (ii)
any Permitted Acquisition. The term "Eligible Reinvestment" shall not include
any item which is not a permitted application of proceeds of an "Asset Sale" (or
any comparable term) under, and as defined in the documents evidencing or
governing any Subordinated Indebtedness.
"Environmental Laws" means any and all applicable Federal, state, local
and foreign statutes, laws (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, the Resource Conservation and Recovery Act of 1976, the Toxic
Substances Control Act, the Water Pollution Control Act, the Clean Air
Act and the Hazardous Materials Transportation Act), regulations,
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ordinances, rules, judgments, orders, decrees, permits, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of Materials of Environmental
Concern into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of Materials of Environmental Concern.
"Equity Issuance" means any issuance by any Consolidated Party to any Person of
(a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to
the exercise of options or warrants, (c) any shares of its Capital Stock
pursuant to the conversion of any debt securities to equity or (d) any options
or warrants relating to its Capital Stock. The term "Equity Issuance" shall not
be deemed to include (a) any Asset Disposition or (b) issuances pursuant to (x)
employee plans of the Borrower that are in place as of the Closing Date to the
extent such issuances are permitted pursuant to the documentation governing
those plans as in effect as of the Closing Date or (y) new employee plans of the
Borrower to the extent such issuances are consistent with past practices of the
Borrower.
"Equity Issuance Prepayment Event" means the receipt by any Consolidated Party
of proceeds from any Equity Issuance.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended,
and any successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time. References to
sections of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" means an entity which is under common control with any
Consolidated Party within the meaning of Section 4001(a)(14) of ERISA, or is a
member of a group which includes any Consolidated Party and which is treated as
a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Single Employer Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by any Consolidated
Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year in
which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (iii) the
distribution of a notice of intent to terminate or the actual termination of a
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution of
proceedings to terminate or the actual termination of a Plan by the PBGC under
Section 4042 of ERISA; (v) any event or condition which could reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan; (vi) the complete
or partial withdrawal of any Consolidated Party or any ERISA Affiliate from a
Multiemployer Plan; (vii) the conditions for imposition of a lien under Section
302(f) of ERISA exist with respect to any Plan; or (viii) the adoption of an
amendment to any Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA.
"Escrow Agreement" means that certain Escrow Agreement dated as of the date
hereof by and among the Borrower, the Agent and Xxxxx Fargo Bank Northwest,
National Association.
"Eurodollar Loan" means any Loan that bears interest at a rate based upon the
Eurodollar Rate.
Page 11
"Eurodollar Rate" means for any Interest Period with respect to any Eurodollar
Loan, a rate per annum determined by the Agent to be equal to the quotient
obtained by dividing (a) the Interbank Offered Rate by (b) 1 minus the
Eurodollar Reserve Percentage.
"Eurodollar Reserve Percentage" means, for any day during any Interest Period,
the 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 Lender,
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System 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"). The Eurodollar Rate for each outstanding Eurodollar Rate Loan
shall be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning assigned to such term in Section 8.1.
"Excess Proceeds" shall have the meaning assigned to such term in Section
6.6(b).
"Executive Officer" of any Person means any of the chief executive officer,
chief operating officer, president, chief financial officer or treasurer of such
Person.
"Existing Letters of Credit" means the letters of credit outstanding on the
Closing Date and identified on Schedule 2.2(a).
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards to
the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Bank of America on such day on such transactions as
determined by the Agent.
"Fees" means all fees payable pursuant to Section 3.5.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal quarter of the
Consolidated Parties for the four fiscal quarter period ending on such date with
respect to the Consolidated Parties on a consolidated basis, the ratio of (a)
the sum of (i) Consolidated EBITDDA for such period minus (ii) Consolidated
Capital Expenditures for such period to (b) the sum of (i) Consolidated Interest
Expense for such period plus (ii) dividends paid by the Borrower to its
shareholders during such period plus (iii) Consolidated Cash Taxes paid during
such period. Notwithstanding the foregoing, for purposes of calculating the
Fixed Charge Coverage Ratio for the first three fiscal quarters to end after the
Closing Date (commencing with the fiscal quarter ending January 31, 2002), the
Fixed Charge Coverage Ratio shall be determined by annualizing the Consolidated
Capital Expenditures component thereof such that for the fiscal quarter ending
January 31, 2002, the Consolidated Capital Expenditures component would be
multiplied by four (4), for the fiscal quarter ending April 30, 2002, the
Consolidated Capital Expenditures component would be multiplied by two (2) and
for the fiscal quarter ending July 31, 2002, the Consolidated Capital
Expenditures component
Page 12
would be multiplied by one and one-third (1-1/3).
"Foreign Subsidiary" means any direct or indirect Subsidiary of the Borrower
which is not a Domestic Subsidiary.
"Fully Satisfied" means, with respect to the Obligations as of any date, that,
as of such date, (a) all principal of and interest accrued to such date which
constitute Obligations shall have been irrevocably paid in full in cash, (b) all
fees, expenses and other amounts then due and payable which constitute
Obligations shall have been irrevocably paid in cash, (c) all outstanding
Letters of Credit shall have been (i) terminated, (ii) fully irrevocably cash
collateralized or (iii) secured by one or more letters of credit on terms and
conditions, and with one or more financial institutions, reasonably satisfactory
to the Issuing Lender and (d) the Commitments shall have been expired or
terminated in full. As used herein, "irrevocably" shall not require the
expiration of any applicable bankruptcy preference period.
"Fund" means any Person other than a natural Person that is (or will be) engaged
in making, purchasing, or holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) the implied principal component of all obligations of
such Person under Capital Leases, (f) the maximum amount of all performance and
standby letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn thereunder
(to the extent unreimbursed), (g) all preferred Capital Stock issued by such
Person and which by the terms thereof could be (at the request of the holders
thereof or otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration (other than as a result of a Change of Control or an Asset
Disposition that does not in fact result in a redemption of such preferred
Capital Stock) at any time prior to the Maturity Date, (h) the principal portion
of all obligations of such Person under Synthetic Leases, (i) all obligations of
such Person to repurchase any securities issued by such Person at any time prior
to the Maturity Date which repurchase obligations are related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares, (j) the aggregate amount of uncollected
accounts receivable of such Person subject at such time to a sale of receivables
(or similar transaction) to the extent such transaction is effected with
recourse to such Person (whether or not such transaction would be reflected on
the balance sheet of such Person in accordance with GAAP), (k) all Funded
Indebtedness of others secured by (or for which the holder of such Funded
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production from, Property owned
or acquired by such Person, whether or not the obligations secured thereby have
been assumed, (l) all Guaranty Obligations of such Person with respect to Funded
Indebtedness of another Person and (m) the Funded Indebtedness of
Page 13
any partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer to the extent such Indebtedness is recourse
to such Person.
"Funded Indebtedness to Capitalization Ratio" means, as of the end of any fiscal
quarter of the Consolidated Parties with respect to the Consolidated Parties on
a consolidated basis, the ratio of (a) Funded Indebtedness of the Consolidated
Parties on a consolidated basis on the last day of such period to (b)
Consolidated Total Capitalization on the last day of such period.
"GAAP" means generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.3 (except,
in respect of Synthetic Leases, as otherwise treated herein).
"Governmental Authority" means any Federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body.
"Guaranty Obligations" means, with respect to any Person, without duplication,
any obligations of such Person (other than endorsements in the ordinary course
of business of negotiable instruments for deposit or collection) guaranteeing or
intended to guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any Property
constituting security therefor, (ii) to advance or provide funds or other
support for the payment or purchase of any such Indebtedness or to maintain
working capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements,
comfort letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
Property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection agreement, foreign
currency exchange agreement or commodity price protection agreement.
"Indebtedness" means, with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a balance sheet
of such Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements under which such Person must make
payments notwithstanding the failure of the counter-party to deliver the goods
or services which such counter-party is required to deliver thereunder (and, for
the avoidance of doubt shall not include arrangements under which
Page 14
such Person must pay for capacity or availability that must be delivered or made
available to entitle the counter-party to payment, notwithstanding that such
Person may not use such capacity or availability), (f) the implied principal
component of all obligations of such Person under Capital Leases, (g) all net
obligations of such Person under Hedging Agreements, (h) the maximum amount of
all performance and standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (i) all preferred Capital
Stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration (other than as a result of a Change
of Control or an Asset Disposition that does not in fact result in a redemption
of such preferred Capital Stock) at any time prior to the Maturity Date, (j) the
principal portion of all obligations of such Person under Synthetic Leases, (k)
all obligations of such Person to repurchase any securities issued by such
Person at any time prior to the Maturity Date which repurchase obligations are
related to the issuance thereof, including, without limitation, obligations
commonly known as residual equity appreciation potential shares, (l) the
aggregate amount of uncollected accounts receivable of such Person subject at
such time to a sale of receivables (or similar transaction) to the extent such
transaction is effected with recourse to such Person (whether or not such
transaction would be reflected on the balance sheet of such Person in accordance
with GAAP), (m) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (n) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person and (o) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer to the extent such Indebtedness is recourse to such
Person.
"Indemnified Party" shall have the meaning assigned to such term in Section
10.5(b).
"Interbank Offered Rate" means, for any Eurodollar Loan for any Interest Period
therefor, the rate per annum (rounded upwards to the nearest 1/100th of 1%) in
each case determined by the Agent to be equal to:
(a) the offered rate that appears on the Dow Xxxxx Telerate Screen Page 3750 (or
any successor page) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of the applicable Interest Period) for a term equivalent to the applicable
Interest Period at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of the applicable Interest Period; or
(b) if for any reason the foregoing rate in clause (i) is unavailable or
undeterminable, the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of the applicable Interest
Period) for a term equivalent to the applicable Interest Period at approximately
11:00 A.M. (London time) two Business Days prior to the first day of the
applicable Interest Period; or
(c) if for any reason the foregoing rates in clauses (i) and (ii) are
unavailable or undeterminable, the rate of interest at which deposits in Dollars
for delivery on the first day of the applicable Interest in same day funds in
the approximate amount
Page 15
of the applicable Eurodollar Loan for a term equivalent to the applicable
Interest Period would be offered by the London branch of Bank of America to
major banks in the offshore Dollar market at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of the applicable Interest
Period.
"Interest Payment Date" means (a) as to Base Rate Loans and Swingline Loans, the
last Business Day of each March, June, September and December, the date of
repayment of principal of such Loan and the Maturity Date, and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period, the date of
repayment of principal of such Loan and the Maturity Date, and in addition where
the applicable Interest Period for a Eurodollar Loan is greater than three
months, then also the date three months from the beginning of the Interest
Period and each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of one, two, three or
six months' duration, as the Borrower may elect, commencing, in each case, on
the date of the borrowing (including continuations and conversions thereof);
provided, however, (a) if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business Day), (b) no
Interest Period shall extend beyond the Maturity Date and (c) where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
assets (other than equipment, timber, timberlands, inventory and supplies in the
ordinary course of business and other than any acquisition of assets
constituting a Consolidated Capital Expenditure), Capital Stock, bonds, notes,
debentures, partnership, joint ventures or other ownership interests or other
securities of such other Person, (b) any deposit with, or advance, loan or other
extension of credit to, such Person (other than deposits made in connection with
the purchase of equipment, timber, timberlands, inventory and supplies in the
ordinary course of business) or (c) any other capital contribution to or
investment in such Person, including, without limitation, any Guaranty
Obligations (including any support for a letter of credit issued on behalf of
such Person) incurred for the benefit of such Person and any Asset Disposition
to such Person for consideration less than the fair market value of the Property
disposed in such transaction, but excluding any Restricted Payment to such
Person. Investments which are capital contributions or purchases of Capital
Stock which have a right to participate in the profits of the issuer thereof
shall be valued at the amount actually contributed or paid to purchase such
Capital Stock as of the date of such contribution or payment. Investments which
are loans, advances, extensions of credit or Guaranty Obligations shall be
valued at the principal amount of such loan, advance or extension of credit
outstanding as of the date of determination or, as applicable, the principal
amount of the loan or advance outstanding as of the date of determination
actually guaranteed by such Guaranty Obligation.
"Involuntary Disposition" means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property of any Consolidated
Party.
"Involuntary Disposition Prepayment Event" means, with respect to any
Involuntary Disposition, the failure of the Borrower to apply (or cause to be
applied) an amount equal to the Excess Proceeds of such Involuntary
Page 16
Disposition, if any, either (i) to prepay the Loans (and cash collateralize the
LOC Obligations) in accordance with the terms of Section 3.3(b)(ii)(B) or (ii)
to make Eligible Reinvestments (including but not limited to the repair or
replacement of the Property affected by such Involuntary Disposition) within the
period of 360 days following the date of receipt of such Excess Proceeds,
subject to the terms and conditions of Section 6.6(b).
"Issuing Lender" means (a) with respect to any Existing Letter of Credit, the
financial institution shown on Schedule 2.2(a) as the issuer of such Letter of
Credit, and (b) with respect to any other Letter of Credit, Bank of America in
its capacity as issuer of such Letter of Credit.
"Joint Venture" means a single-purpose corporation, 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 any Consolidated Party with another Person in order to
conduct a common venture or enterprise with such Person.
"Lender" means any of the Persons identified as a "Lender" on the signature
pages hereto, and any Person which may become a Lender by way of assignment in
accordance with the terms hereof, together with their successors and permitted
assigns.
"Letter of Credit" means any Existing Letter of Credit and any letter of credit
issued by the Issuing Lender for the account of the Borrower in accordance with
the terms of Section 2.2.
"Letter of Credit Application" means an application for a Letter of Credit
issuance from time to time in use by an Issuing Lender.
"Letter of Credit Fee" shall have the meaning assigned to such term in Section
3.5(b).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise) or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement and any lease in the nature
thereof).
"Loan" or "Loans" means the Revolving Loans (or a portion thereof bearing
interest at the Adjusted Base Rate or the Adjusted Eurodollar Rate and referred
to as a Base Rate Loan or a Eurodollar Loan) and/or Swingline Loans,
individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to issue Letters of
Credit in an aggregate face amount at any time outstanding (together with the
amounts of any unreimbursed drawings thereon) of up to the LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such term in Section
2.2.
"LOC Documents" means, with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith,
any application therefor, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (i) the rights and obligations of the parties
concerned or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, without duplication, the sum of
Page 17
(i) the maximum amount which is, or at any time thereafter may become, available
to be drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus (ii)
the aggregate amount of all drawings under Letters of Credit honored by the
Issuing Lender but not theretofore reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on (i) the condition
(financial or otherwise), operations, business, assets, liabilities or prospects
of the Consolidated Parties taken as a whole, (ii) the ability of the Borrower
to perform any material obligation under the Credit Documents to which it is a
party or (iii) the material rights and remedies of the Agent and the Lenders
under the Credit Documents.
"Materials of Environmental Concern" means any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under
any Environmental Laws, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Maturity Date" means December 10, 2004.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or assignee of
the business of such company in the business of rating securities.
"Multiemployer Plan" means a Plan which is a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, and which is subject to Title IV of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer Plan) which
any Consolidated Party or any ERISA Affiliate and at least one employer other
than the Consolidated Parties or any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents proceeds
received by any Consolidated Party in respect of any Asset Disposition, Equity
Issuance, Debt Issuance or Involuntary Disposition, net of (a) direct costs
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) (b) taxes paid or payable as a result thereof and (c) in
the case of any Asset Disposition, the amount necessary to prepay or retire any
Indebtedness either secured by a Permitted Lien (ranking senior to any Lien of
the Agent) on the related Property or incurred specifically in connection with
the acquisition of the Property that is included in such Asset Disposition; it
being understood that "Net Cash Proceeds" shall include, without limitation, any
cash or Cash Equivalents received upon the sale or other disposition of any
non-cash consideration received by any such Consolidated Party in any Asset
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition. In
addition and without duplication, the "Net Cash Proceeds" of any Asset
Disposition shall include any other amounts which constitute "Net Proceeds" (or
any comparable term) of such transaction under, and as defined in the documents
evidencing or governing any Subordinated Indebtedness.
"Note" or "Notes" means the Revolving Notes and/or the Swingline Note,
individually or collectively, as appropriate.
"Notice of Borrowing" means a written notice of borrowing in substantially the
form of Exhibit 2.1(b)(i), as required by Section 2.1(b)(i) or Section 2.3(b).
Page 18
"Notice of Extension/Conversion" means the written notice of extension or
conversion in substantially the form of Exhibit 3.2, as required by Section 3.2.
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) all payment and
other obligations owing by the Borrower to any Lender or Affiliate of a Lender
or the Agent under any Hedging Agreement (which such Hedging Agreement is
permitted hereunder), and (c) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Borrower to the
Lenders or the Agent, of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note, in each
case under or in respect of this Agreement, any Note, or any of the other Credit
Documents. "Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any Property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in Section 3.11(b).
"Participant" shall have the meaning assigned to such term in Section 10.3(d).
"Participation Interest" means a purchase by a Lender of a participation in
Letters of Credit or LOC Obligations as provided in Section 2.2, Swingline Loans
as provided in Section 2.3 or in any Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means an Acquisition by the Borrower or any Subsidiary
of the Borrower permitted pursuant to the terms of Section 7.6(h).
"Permitted Asset Disposition" means any Asset Disposition permitted by Section
7.5.
"Permitted Investments" means, at any time, Investments by the Consolidated
Parties permitted to exist at such time pursuant to the terms of Section 7.6.
"Permitted Liens" means, at any time, Liens in respect of Property of the
Consolidated Parties permitted to exist at such time pursuant to the terms of
Section 7.2.
"Person" means any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise (whether or
not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of ERISA)
which is covered by ERISA and with respect to which any Consolidated Party or
any ERISA Affiliate is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" within the meaning of
Section 3(5) of ERISA.
Page 19
"Prime Rate" means, for any day, the per annum rate of interest rate in effect
for such day as publicly announced from time to time by Bank of America as its
"prime rate." Such rate is a rate set by Bank of America based upon various
factors including Bank of America'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 such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Prior Bank Commitments" means (i) the Borrower's committed credit facility
evidenced by that certain Credit Agreement dated as of February 24, 2000 by and
among the Borrower, the several financial institutions from time to time party
thereto, and Bank of America, as Agent, as amended and modified prior to the
Closing Date, and (ii) the Borrower's revolving credit facility evidenced by
that certain Letter Loan Agreement dated as of January 26, 2001 by and among the
Borrower and Bank of America, as amended and modified prior to the Closing Date.
"Pro Forma Basis" means, for purposes of calculating (utilizing the principles
set forth in the second paragraph of Section 1.3) compliance with each of the
financial covenants set forth in Section 6.10(a)-(c) in respect of a proposed
transaction, that such transaction shall be deemed to have occurred as of the
first day of the four fiscal-quarter period ending as of the most recent fiscal
quarter end preceding the date of such transaction with respect to which the
Agent has received the Required Financial Information. As used herein,
"transaction" shall mean (i) any incurrence or assumption of Indebtedness as
referred to in Section 7.1(f), (ii) any Asset Disposition as referred to in
Section 7.5 or (iii) any Acquisition as referred to in Section 7.6(i). In
connection with any calculation of the financial covenants set forth in Section
6.10(a)-(c) upon giving effect to a transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any incurrence or
assumption of Indebtedness as referred to in Section 7.1(f), any Indebtedness
which is retired in connection with such incurrence or assumption shall be
excluded and deemed to have been retired as of the first day of the applicable
period;
(B) for purposes of any such calculation in respect of any Asset Disposition as
referred to in Section 7.5, (1) income statement items (whether positive or
negative) attributable to the Property disposed of shall be excluded and (2) any
Indebtedness which is retired in connection with such transaction shall be
excluded and deemed to have been retired as of the first day of the applicable
period; and
(C) for purposes of any such calculation in respect of any Acquisition as
referred to in Section 7.6(i), (1) any Indebtedness incurred by any Consolidated
Party in connection with such transaction (x) shall be deemed to have been
incurred as of the first day of the applicable period and (y) if such
Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination, (2) income statement
items (whether positive or negative) attributable to the Person or Property
acquired shall be included beginning as of the first day of the applicable
period and (3) pro forma adjustments may be included to the extent that such
adjustments would be permitted under GAAP and give effect to events that are (x)
directly attributable to such transaction, (y) expected to have a continuing
impact on the Consolidated Parties and (z) factually supportable.
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"Pro Forma Compliance Certificate" means a certificate of an Executive Officer
of the Borrower delivered to the Agent in connection with (i) any incurrence,
assumption or retirement of Indebtedness as referred to in Section 7.1(f), (ii)
any Asset Disposition as referred to in Section 7.5 or (iii) any Acquisition as
referred to in Section 7.6(i), as applicable, and containing reasonably detailed
calculations, upon giving effect to the applicable transaction on a Pro Forma
Basis, of the Funded Indebtedness to Capitalization Ratio, the Fixed Charge
Coverage Ratio and Consolidated Net Worth as of the most recent fiscal quarter
end preceding the date of the applicable transaction with respect to which the
Agent shall have received the Required Financial Information.
"Property" means any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.
"Real Properties" means, at any time, a collective reference to each of the
facilities and real properties owned, leased or operated by the Consolidated
Parties at such time.
"Register" shall have the meaning assigned to such term in Section 10.3(c).
"Regulation D, T, U, or X" means Regulation D, T, U or X, respectively, of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.
"Reimbursement Agreement" shall mean any agreement set forth on Schedule 2.2(l)
hereto.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the notice requirement has been
waived.
"Required Financial Information" means, with respect to the applicable
Calculation Date, (i) the financial statements of the Consolidated Parties
required to be delivered pursuant to Section 6.1(a) or (b) for the fiscal period
or quarter ending as of such Calculation Date, and (ii) the certificate of an
Executive Officer of the Borrower required by Section 6.1(c) to be delivered
with the financial statements described in clause (i) above.
"Required Lenders" means, at any time, Lenders (other than Defaulting Lenders)
holding in the aggregate at least sixty-six and two-thirds percent (66-2/3%) of
(i) the unfunded Commitments (and Participation Interests therein) and the
outstanding Loans (and Participation Interests therein) or (ii) if all of the
Commitments have been terminated, the outstanding Loans, LOC Obligations and
Participation Interests (including the Participation Interests of the Issuing
Lender in any Letters of Credit).
"Requirement of Law" means, as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject and in the case of
the determination of an arbitrator, court or Governmental Authority, which
determination shall not have been discharged or execution thereof stayed pending
appeal within 30 days after the expiration of any applicable stay of execution.
"Restricted Payment" means (i) any dividend or other payment or distribution,
direct or indirect, on account of any shares of any class
Page 21
of Capital Stock of any Consolidated Party, now or hereafter outstanding
(including without limitation any payment in connection with any dissolution,
merger, consolidation or disposition involving any Consolidated Party), or to
the holders, in their capacity as such, of any shares of any class of Capital
Stock of any Consolidated Party, now or hereafter outstanding (other than
dividends or distributions payable in Capital Stock of the applicable Person and
dividends or distributions payable (directly or indirectly through Subsidiaries)
to the Borrower), (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of Capital Stock of any Consolidated Party, now or hereafter outstanding, and
(iv) any payment or prepayment of principal of, or premium, if any, on
(including any redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to) the Senior Subordinated Notes. Notwithstanding
the foregoing, the term Restricted Payment shall not include any redemption of
share purchase rights issued pursuant to the Borrower's shareholder rights plan
existing on the Closing Date (as the same may be amended from time to time) or
any similar successor or replacement shareholder rights plan, for a redemption
price not to exceed $0.01 per share purchase right.
"Revolving Commitment" means, with respect to each Lender, the commitment of
such Lender in an aggregate principal amount at any time outstanding of up to
such Lender's Revolving Commitment Percentage of the Revolving Committed Amount,
(i) to make Revolving Loans in accordance with the provisions of Section 2.1(a)
and (ii) to purchase Participation Interests in Letters of Credit in accordance
with the provisions of Section 2.2(c).
"Revolving Commitment Percentage" means, for any Lender, the percentage
identified as its Revolving Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 10.3.
"Revolving Committed Amount" shall have the meaning assigned to such term in
Section 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term in Section
2.1(a).
"Revolving Note" shall have the meaning assigned to such term in Section 2.1(e).
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Sale and Leaseback Transaction" means any arrangement pursuant to which any
Consolidated Party, directly or indirectly, becomes liable as lessee, guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any Property (a) which such Consolidated Party has sold or
transferred (or is to sell or transfer) to a Person which is not a Consolidated
Party or (b) which such Consolidated Party intends to use for substantially the
same purpose as any other Property which has been sold or transferred (or is to
be sold or transferred) by such Consolidated Party to another Person which is
not a Consolidated Party in connection with such lease, provided that any
transaction that satisfies the conditions in preceding subsection (a) or (b)
shall not constitute a "Sale and Leaseback Transaction" where lessor under such
lease is organized under the laws of a jurisdiction outside of the United
States, the Property is located in the United States and the obligations
Page 22
in respect of the lease or incurred in connection therewith for which the
Consolidated Party is liable have been defeased.
"Securities Act" means the Securities Act of 1933, as amended, and all
regulations issued pursuant thereto.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all regulations issued pursuant thereto.
"Senior Subordinated Note" means any one of the 10.0% Senior Subordinated Notes
due 2009, issued by the Borrower in favor of the Senior Subordinated Noteholders
pursuant to the Senior Subordinated Note Indenture, as such Senior Subordinated
Notes may be amended, modified, restated or supplemented and in effect from time
to time in accordance with the terms hereof.
"Senior Subordinated Note Indenture" means the Indenture, dated as of the
Closing Date, by and among the Borrower and the Trustee for the Senior
Subordinated Noteholders, as the same may be amended, modified, restated or
supplemented and in effect from time to time in accordance with the terms
hereof.
"Senior Subordinated Noteholder" means any one of the holders from time to time
of the Senior Subordinated Notes.
"Single Employer Plan" means any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan or a Multiple Employer Plan.
"Solvent" or "Solvency" means, with respect to any Person as of a particular
date, that on such date (i) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature in their ordinary course, (iii) such
Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (iv) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"SPV" have the meaning set forth in Section 10.3(i).
"Subordinated Indebtedness" means Indebtedness outstanding under the Senior
Subordinated Note Indenture and the Senior Subordinated Notes and any other
Indebtedness of the Borrower which by its terms is subordinated to the
Obligations in a manner and to an extent acceptable to the Required Lenders.
"Subsidiary" means, as to any Person at any time, (a) any corporation more than
50% of whose Capital Stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at such time, any class or classes of such
corporation shall have or might have
Page 23
voting power by reason of the happening of any contingency) is at such time
owned by such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity of which such Person
directly or indirectly through Subsidiaries owns at such time more than 50% of
the Capital Stock of such entity.
"Swingline Commitment" means the obligation of the Swingline Lender to make
Swingline Loans under the Revolving Commitment for the account of the Borrower
in an aggregate principal amount at any time outstanding not to exceed Fifteen
Million Dollars ($15,000,000). "Swingline Lender" means Bank of America in its
capacity as issuer of any Swingline Loan. "Swingline Loan Request" means a
request by the Borrower for a Swingline Loan in substantially the form of
Exhibit 2.3(b).
"Swingline Loans" means the collective reference to the revolving loans made
pursuant to Section 2.3; "Swingline Loan" means any of such Swingline Loans.
"Swingline Note" shall have the meaning assigned to such term in Section 2.3(e).
"Synthetic Lease" means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an Operating Lease under GAAP.
"Taxes" shall have the meaning assigned to such term in Section 3.11(a).
"Unused Fee" shall have the meaning assigned to such term in Section 3.5(a).
"Unused Fee Calculation Period" shall have the meaning assigned to such term in
Section 3.5(a).
"Unused Revolving Committed Amount" means, for any period, the amount by which
(a) the then applicable Revolving Committed Amount exceeds (b) the daily average
sum for such period of (i) the outstanding aggregate principal amount of all
Revolving Loans plus (ii) the outstanding aggregate principal amount of all LOC
Obligations.
"Voting Stock" means, with respect to any Person, Capital Stock issued by such
Person the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even though the right so to vote has been suspended
by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Voting Stock is at the
time owned by the Borrower directly or indirectly through other Persons 100% of
whose Voting Stock is at the time owned, directly or indirectly, by the
Borrower.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used herein
shall be interpreted, and all financial statements and certificates and reports
as to financial matters required to be delivered to the Lenders hereunder shall
be prepared, in accordance with GAAP
Page 24
applied on a consistent basis; provided, however, that calculations of the
implied principal component of all obligations under any Synthetic Lease or the
implied interest component of any rent paid under any Synthetic Lease shall be
made by the Borrower in accordance with accepted financial practice and
consistent with the terms of such Synthetic Lease. All calculations made for the
purposes of determining compliance with this Credit Agreement shall (except as
otherwise expressly provided herein) be made by application of GAAP applied on a
basis consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 6.1 (or, prior to the delivery of the first
financial statements pursuant to Section 6.1, consistent with the financial
statements as at July 31, 2001); provided, however, if (a) the Borrower shall
object to determining such compliance on such basis at the time of delivery of
such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (b) the Agent or the Required Lenders shall so object in
writing within 60 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Borrower to the Lenders as to which no such
objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree that, for
purposes of all calculations made under the financial covenants set forth in
Section 6.10 (including without limitation for purposes of the definitions of
"Applicable Percentage" and "Pro Forma Basis" set forth in Section 1.1), (i)
after consummation of any Asset Disposition for consideration (cash and
non-cash) in excess of $10,000,000 (A) income statement items (whether positive
or negative) and capital expenditures attributable to the Property disposed of
shall be excluded to the extent relating to any period occurring prior to the
date of such transaction and (B) Indebtedness which is retired shall be excluded
and deemed to have been retired as of the first day of the applicable period and
(ii) after consummation of any Acquisition for an Investment for consideration
(cash and non-cash) in excess of $10,000,000 (A) income statement items (whether
positive or negative) and capital expenditures attributable to the Person or
Property acquired shall, to the extent not otherwise included in such income
statement items for the Consolidated Parties in accordance with GAAP or in
accordance with any defined terms set forth in Section 1.1, be included to the
extent relating to any period applicable in such calculations, (B) to the extent
not retired in connection with such Acquisition, Indebtedness of the Person or
Property acquired shall be deemed to have been incurred as of the first day of
the applicable period and (C) pro forma adjustments may be included to the
extent that such adjustments would be permitted under GAAP and give effect to
items that are (x) directly attributable to such transaction, (y) expected to
have a continuing impact on the Consolidated Parties and (z) factually
supportable.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein, each Lender
severally agrees to make available to the Borrower such Lender's Revolving
Commitment Percentage of revolving credit loans requested by the Borrower in
Dollars ("Revolving Loans") from time to time from the Closing Date until the
Maturity Date, or such earlier date as the Revolving Commitments shall have been
terminated as provided herein; provided, however, that the sum of the aggregate
outstanding
Page 25
principal amount of Revolving Loans plus the aggregate amount of Swingline Loans
outstanding plus the outstanding LOC Obligations shall not exceed TWO HUNDRED
FIFTY MILLION DOLLARS ($250,000,000) (as such aggregate maximum amount may be
reduced from time to time as provided in Section 3.4, the "Revolving Committed
Amount"); provided, further, with regard to each Lender individually, such
Lender's outstanding Revolving Loans plus its Participation Interests in
Swingline Loans and LOC Obligations shall not exceed such Lender's Revolving
Commitment Percentage of the Revolving Committed Amount. Revolving Loans may
consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as the
Borrower may request; provided, however, that no more than six (6) Eurodollar
Loans which are Revolving Loans shall be outstanding hereunder at any time (it
being understood that, for purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period). Revolving Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan borrowing
by written notice (or telephonic notice promptly confirmed in writing) to the
Agent no later than 9:00 A.M. (San Francisco, California time) on the date of
the requested borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in the case of
Eurodollar Loans. Each such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate principal amount to
be borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period in the
case of a Eurodollar Loan, then such notice shall be deemed to be a request for
an Interest Period of one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Agent shall give notice to each affected Lender promptly upon receipt of
each Notice of Borrowing pursuant to this Section 2.1(b)(i), the contents
thereof and each such Lender's share of any borrowing to be made pursuant
thereto.
(ii) Minimum Amounts. Except for Revolving Loans made for the purpose of
reimbursing the Issuing Lender in respect of a drawing under a Letter of Credit
pursuant to Section 2.2(e) or Swingline Loans pursuant to Section 2.3(d), each
Eurodollar Loan or Base Rate Loan that is a Revolving Loan shall be in a minimum
aggregate principal amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof (or the remaining amount of the Revolving Committed Amount, if
less).
(iii) Advances. Each Lender will make its Revolving Commitment Percentage of
each Revolving Loan borrowing available to the Agent for the account of the
Borrower as specified in Section 3.15(a), or in such other manner as the Agent
may specify in writing, by 12:00 noon (San Francisco, California time) on the
date specified in the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Agent. Such borrowing will then be made available
to the Borrower by the Agent by crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the Agent.
Page 26
(c) Repayment. The Borrower hereby promises to pay the principal amount of all
outstanding Revolving Loans in full on the Maturity Date, unless accelerated
sooner pursuant to Section 8.2.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving Loans shall be comprised
in whole or in part of Base Rate Loans, such Base Rate Loans shall bear interest
at a per annum rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Revolving Loans shall be comprised
in whole or in part of Eurodollar Loans, such Eurodollar Loans shall bear
interest at a per annum rate equal to the Adjusted Eurodollar Rate.
The Borrower hereby promises to pay interest on Revolving Loans in arrears on
each applicable Interest Payment Date (or at such other times as may be
specified herein).
(e) Revolving Notes. The Borrower hereby agrees that, upon the request to the
Agent by any Lender, the Borrower will, without duplication, execute and deliver
to such Lender a promissory note evidencing the Revolving Loans of such Lender,
substantially in the form of Exhibit 2.1(e) (a "Revolving Note").
2.2 Letter of Credit Subfacility.
(a) Issuance. The Existing Letters of Credit have previously been issued by the
applicable Issuing Lender and subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein, Bank of
America, in its capacity as an Issuing Lender, agrees to issue, the applicable
Issuing Lender agrees to renew, extend and modify and each Lender severally
agrees to participate in the issuance by such Issuing Lender of, standby Letters
of Credit in Dollars from time to time from the Closing Date until the date
thirty (30) days prior to the Maturity Date as the Borrower may request, by
delivering a Letter of Credit Application to the applicable Issuing Lender;
provided, however, that (i) the LOC Obligations outstanding shall not at any
time exceed FIFTY MILLION DOLLARS ($50,000,000) (the "LOC Committed Amount") and
(ii) the sum of (A) the aggregate outstanding principal amount of Revolving
Loans, (B) the aggregate outstanding principal amount of Swingline Loans and (C)
the aggregate outstanding principal amount of LOC Obligations shall not at any
time exceed the Revolving Committed Amount. No Letter of Credit shall (x) have
an original expiry date more than one year from the date of issuance (provided
that any such Letter of Credit (I) may contain customary "evergreen" provisions
pursuant to which the expiry date is automatically extended by a specific time
period unless the applicable Issuing Lender gives notice to the beneficiary of
such Letter of Credit at least a specified time period prior to the expiry date
then in effect and/or (II) may have an expiration date more than one year from
the date of issuance if required under related industrial revenue bond documents
and agreed to by the Issuing Lender) or (y) as originally issued or as extended,
have an expiry date extending beyond the date thirty (30) days prior to the
Maturity Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance date of each Letter of Credit shall be a Business Day.
All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and governed by
the terms and conditions hereof.
(b) Notice and Reports. The request for the issuance of a Letter of Credit shall
be submitted by the Borrower to the applicable Issuing Lender and the Agent at
least three (3) Business Days prior to the
Page 27
requested date of issuance. The Agent will, at least quarterly and more
frequently upon request, disseminate to each of the Lenders a detailed report
specifying the Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of the
prior report, and including therein, among other things, the beneficiary, the
face amount and the expiry date, as well as any payment or expirations which may
have occurred.
(c) Participation. Each Lender, upon issuance of a Letter of Credit, shall be
deemed to have purchased without recourse a Participation Interest from the
applicable Issuing Lender in such Letter of Credit (including each Existing
Letter of Credit) and the obligations arising thereunder and any collateral
relating thereto, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective Revolving
Commitment Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume and be obligated to pay to such Issuing Lender and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit (including each Existing Letter of Credit). Without limiting the scope
and nature of each Lender's Participation Interest in any Letter of Credit, to
the extent that an Issuing Lender has not been reimbursed as required hereunder
or under any such Letter of Credit, each such Lender shall pay to such Issuing
Lender its pro rata share of such unreimbursed drawing in same day funds on the
day of notification by such Issuing Lender of an unreimbursed drawing pursuant
to the provisions of subsection (d) below. The obligation of each Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the applicable Issuing Lender
under any Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit, the
applicable Issuing Lender will promptly notify the Borrower. Unless the Borrower
shall immediately notify such Issuing Lender that the Borrower intends to
otherwise reimburse such Issuing Lender for such drawing, the Borrower shall be
deemed to have requested that the Lenders make a Revolving Loan in the amount of
the drawing as provided in subsection (e) below on the related Letter of Credit,
the proceeds of which will be used to satisfy the related reimbursement
obligations. The Borrower promises to reimburse the applicable Issuing Lender on
the day of drawing under any Letter of Credit (either with the proceeds of a
Revolving Loan obtained hereunder or otherwise) in same day funds. If the
Borrower shall fail to reimburse any Issuing Lender as provided hereinabove, the
Borrower promises to pay such Issuing Lender interest on the unreimbursed amount
of such drawing on demand at a per annum rate equal to the Adjusted Base Rate
plus 2%. The Borrower's reimbursement obligations hereunder shall be absolute
and unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against any
Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation any defense based
on any failure of the Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit. The applicable
Issuing Lender will promptly notify the Agent of the amount of any unreimbursed
drawing and each Lender shall promptly pay to the Agent for the account of such
Issuing Lender in Dollars and in immediately available funds, the amount of such
Lender's pro rata share of such unreimbursed drawing. Such payment shall be made
on the day such notice is received by such Lender from such Issuing Lender if
such notice is received at or before 12:00 noon (San Francisco, California
time), and otherwise such payment shall be made at or before 1:00 P.M. (San
Page 28
Francisco, California time) on the Business Day next succeeding the day such
notice is received. If such Lender does not pay such amount to the Agent in full
upon such request, such Lender shall, on demand, pay to the Agent for the
account of such Issuing Lender interest on the unpaid amount during the period
from the date of such drawing until such Lender pays such amount to such Issuing
Lender in full at a rate per annum equal to, if paid within two (2) Business
Days of the date that such Lender is required to make payments of such amount
pursuant to the preceding sentence, the Federal Funds Rate and thereafter at a
rate equal to the Base Rate. Each Lender's obligation to make such payment to
the applicable Issuing Lender, and the right of such Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this Credit
Agreement or the Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a Lender to
an Issuing Lender, such Lender shall, automatically and without any further
action on the part of such Issuing Lender or such Lender, acquire a
Participation Interest in an amount equal to such payment (excluding the portion
of such payment constituting interest owing to such Issuing Lender) in the
related unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim against the
Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower shall have
requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Agent shall give notice to the
Lenders that a Revolving Loan has been requested or deemed requested by the
Borrower to be made in connection with a drawing under a Letter of Credit, in
which case a Revolving Loan advance comprised of Base Rate Loans (or Eurodollar
Loans to the extent the Borrower has complied with the procedures of Section
2.1(b)(i) with respect thereto) shall be immediately made to the Borrower by all
Lenders (notwithstanding any termination of the Commitments pursuant to Section
8.2) pro rata based on the respective Revolving Commitment Percentages of the
Lenders (determined before giving effect to any termination of the Commitments
pursuant to Section 8.2) and the proceeds thereof shall be paid directly to the
applicable Issuing Lender for application to the respective LOC Obligations.
Each such Lender hereby irrevocably agrees to make its pro rata share of each
such Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure for any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each such Lender hereby
agrees that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the applicable
Issuing Lender such Participation Interests in the outstanding LOC Obligations
as shall be necessary to cause each such Lender to share in such LOC Obligations
ratably (based upon the respective Revolving Commitment
Page 29
Percentages of the Lenders (determined before giving effect to any termination
of the Commitments pursuant to Section 8.2)), provided that at the time any
purchase of Participation Interests pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay to such Issuing Lender, to the
extent not paid to such Issuing Lender by the Borrower in accordance with the
terms of subsection (d) above, interest on the principal amount of Participation
Interests purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of payment for
such Participation Interests, at the rate equal to, if paid within two (2)
Business Days of the date of the Revolving Loan advance, the Federal Funds Rate,
and thereafter at a rate equal to the Base Rate.
(f) Designation of Consolidated Parties as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including without
limitation Section 2.2(a), a Letter of Credit may be issued hereunder for the
account of any Subsidiary of the Borrower, provided that, the Borrower shall be
the actual applicant for all purposes of this Credit Agreement for such Letter
of Credit and such statement shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as the issuance of a
new Letter of Credit hereunder.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the applicable
Issuing Lender and the Borrower when a Letter of Credit is issued, the rules of
the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.2, the Borrower
hereby agrees to pay, and protect, indemnify and save each Lender harmless from
and against, any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees) that such Lender may
incur or be subject to as a consequence, direct or indirect, of (A) the issuance
of any Letter of Credit or (B) the failure of such Lender to honor a drawing
under a Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called "Government
Acts").
(ii) As between the Borrower and the Lenders (including each Issuing Lender),
the Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. No Lender (including an Issuing
Lender) shall be responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (C) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (D) for any loss or delay in the transmission or otherwise of any
document required in order
Page 30
to make a drawing under a Letter of Credit or of the proceeds thereof; and (E)
for any consequences arising from causes beyond the control of such Lender,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of an Issuing Lender's rights or powers
hereunder.
(iii) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Lender
(including an Issuing Lender), under or in connection with any Letter of Credit
or the related certificates, if taken or omitted in good faith, shall not put
such Lender under any resulting liability to the Borrower. It is the intention
of the parties that this Credit Agreement shall be construed and applied to
protect and indemnify each Lender (including each Issuing Lender) against any
and all risks involved in the issuance of the Letters of Credit, all of which
risks are hereby assumed by the Borrower, including, without limitation, any and
all Government Acts. No Lender (including an Issuing Lender) shall, in any way,
be liable for any failure by such Lender or anyone else to pay any drawing under
any Letter of Credit as a result of any Government Acts or any other cause
beyond the control of such Lender.
(iv) Nothing in this subsection (i) is intended to limit the reimbursement
obligations of the Borrower contained in subsection (d) above. The obligations
of the Borrower under this subsection (i) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior beneficiary of a
Letter of Credit shall in any way affect or impair the rights of the Lenders
(including each Issuing Lender) to enforce any right, power or benefit under
this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this subsection (i),
the Borrower shall have no obligation to indemnify any Lender (including an
Issuing Lender) in respect of any liability incurred by such Lender (A) arising
solely out of the gross negligence or willful misconduct of such Lender, as
determined by a court of competent jurisdiction, or (B) caused by such Lender's
failure to pay under any Letter of Credit after presentation to it of a request
strictly complying with the terms and conditions of such Letter of Credit, as
determined by a court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.
(j) Responsibility of Each Issuing Lender. It is expressly understood and agreed
that the obligations of each Issuing Lender hereunder to the Lenders are only
those expressly set forth in this Credit Agreement and that each Issuing Lender
shall be entitled to assume that the conditions precedent set forth in Section
4.2 have been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however, that nothing
set forth in this Section 2.2 shall be deemed to prejudice the right of any
Lender to recover from any Issuing Lender any amounts made available by such
Lender to such Issuing Lender pursuant to this Section 2.2 in the event that it
is determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(k) Limitation on Obligation of Each Issuing Lender. Notwithstanding anything
contained herein to the contrary, no Issuing Lender shall be under any
obligation to issue, renew or extend 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 Issuing Lender from issuing a Letter of
Credit, or any applicable law, rule or regulation or any request or directive
(whether or not having the force of law) from any governmental with jurisdiction
over the
Page 31
Issuing Lender shall prohibit, or request that such Issuing Lender refrain from,
the issuance of letters of credit generally or any such Letter of Credit in
particular, or shall impose upon the Issuing Lender with respect to any such
Letter of Credit any restriction, reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such Issuing Lender any unreimbursed loss,
costs or expense which was not applicable on the Closing Date and which such
Issuing Lender should deem material to it in good faith, or (ii) the issuance,
renewal or extension would violate or otherwise contravene its internal policy.
(l) Conflict with LOC Documents. In the event of any conflict between this
Credit Agreement and any LOC Document (including any Letter of Credit
Application), this Credit Agreement shall control with respect to the Persons
who are parties to this Credit Agreement and such LOC Document. Notwithstanding
the generality of the foregoing, each of the Reimbursement Agreements set forth
on Schedule 2.2(l) is and shall be deemed amended such that the representations
and warranties, covenants and events of default (and definitions related
thereto) set out in such Reimbursement Agreements, except to the extent they
relate specifically to the relevant bonds or relevant remarketing program,
conform with the representations and warranties, covenants and events of default
(and definitions related thereto) set out in this Credit Agreement (the
"Incorporated Provisions"). Such amendments shall survive (i) the payment in
full of all obligations due the Lenders by the Borrower under this Credit
Agreement, (ii) the termination (for any reason) of this Credit Agreement, (iii)
the sale or participation (in whole or in part) of a Lender's interest in this
Credit Agreement, or (iv) any other event which has the effect of terminating
the obligations of the Borrower to the Lenders under this Credit Agreement. Upon
the happening of one of the events set forth in the immediately preceding
sentence, the Borrower agrees to promptly execute a modification of the relevant
Reimbursement Agreement(s) to confirm such amendment. Notwithstanding the
preceding sentence or the failure of any such modification to be executed, the
Borrower must remain in compliance with the Incorporated Provisions as if set
forth in the relevant Reimbursement Agreement(s). Any future modification of or
amendment to the Incorporated Provisions shall be a modification of or amendment
to the relevant Reimbursement Agreement(s) for purposes of compliance with such
agreements. Likewise, if the Agent and the Required Lenders grant a waiver of
compliance of the Incorporated Provisions for any period, such waiver shall be
deemed to be a waiver of compliance of the relevant Reimbursement Agreement(s)
for the limited period of time for which the waiver was granted.
2.3 Swingline Loans and Procedure.
(a) Swingline Loans. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, the Swingline Lender
hereby agrees to make loans (each a "Swingline Loan" and collectively, the
"Swingline Loans") to the Borrower, in Dollars, at any time and from time to
time, during the period from and including the Closing Date to but not including
the Maturity Date (or such earlier date if the Commitments have been terminated
as provided herein); provided that (i) the aggregate principal amount of the
Swingline Loans outstanding at any one time shall not exceed the Swingline
Commitment and (ii) the aggregate amount of outstanding Swingline Loans plus the
aggregate amount of outstanding Revolving Loans plus LOC Obligations shall not
exceed the Revolving Committed Amount. Subject to the terms of this Loan
Agreement, the Borrower may borrow, repay and reborrow Swingline Loans. The
Swingline Loans shall bear interest at a rate mutually agreeable to the
Swingline Lender and the Borrower at the time of the borrowing of such Swingline
Loan.
Page 32
(b) Borrowing Procedures. By no later than 3:00 P.M. (San Francisco, California
time) on the date of the requested borrowing of Swingline Loans, the Borrower
shall provide telephone notice to the Swingline Lender, followed promptly by a
written Swingline Loan Request in the form of Exhibit 2.3(b) (which maybe
submitted by telecopy) setting forth (i) the amount of the requested Swingline
Loan and (ii) the date of the requested Swingline Loan and complying in all
respects with Section 4.2. The Swingline Lender shall initiate the transfer of
funds representing the Swingline Loan advance to the Borrower by 4:00 P.M. (San
Francisco, California time) on the Business Day of the requested borrowing.
(c) Minimum Amounts. Each Swingline Loan shall be in a minimum amount of the
lesser of $500,000 (and in integral multiples of $100,000 in excess thereof) or
the remaining amount available under the Swingline Commitment.
(d) Repayment and Participations of Swingline Loans. The Borrower agrees to
repay all Swingline Loans immediately upon the existence of a Default or Event
of Default or otherwise within one Business Day of demand therefor by the
Swingline Lender. If the Borrower does not immediately notify the Swingline
Lender that the Borrower intends to otherwise repay such Swingline Loan, the
Borrower shall be deemed to have requested a Revolving Loan advance comprised
solely of Base Rate Loans in the amount of such Swingline Loans; provided,
however, that any such demand shall be deemed to have been given one Business
Day prior to the Maturity Date and on the date of the occurrence of any Event of
Default described in Section 8.1 and upon acceleration of the indebtedness
hereunder and the exercise of remedies in accordance with the provisions of
Section 8.2. Each Lender hereby irrevocably agrees to make its pro rata share of
each such Revolving Loan in the amount, in the manner and on the date specified
in the preceding sentence notwithstanding (i) the amount of such borrowing may
not comply with the minimum amount for advances of Revolving Loans otherwise
required hereunder, (ii) whether any conditions specified in Section 4.2 are
then satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
failure of any such request or deemed request for a Revolving Loan to be made by
the time otherwise required hereunder, (v) whether the date of such borrowing is
a date on which Revolving Loans are otherwise permitted to be made hereunder or
(vi) any termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other Consolidated Party),
then each Lender hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such Participation Interests in the outstanding
Swingline Loans as shall be necessary to cause each such Lender to share in such
Swingline Loans ratably based upon its Revolving Commitment Percentage of the
Revolving Committed Amount (determined before giving effect to any termination
of the Commitments pursuant to Section 3.4), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective Participation Interest is purchased
and (B) at the time any purchase of Participation Interests pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay to the
Swingline Lender, interest on the principal amount of Participation Interests
purchased for each day from the date of demand thereof, at a rate equal to, if
paid within two Business Days of such date, the Federal Funds Rate, and
thereafter at a rate equal to the Base Rate plus two percent (2%) per annum.
Page 33
(e) Swingline Loan Note. The Swingline Loans made by the Swingline Lender shall
be evidenced by a duly executed promissory note of the Borrower to the Swingline
Lender in substantially the form of Exhibit 2.3(e) (a "Swingline Note").
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of Default, (i) the
principal of and, to the extent permitted by law, interest on the Loans and any
other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then the Adjusted Base Rate plus 2%) and
(ii) the Letter of Credit Fee shall accrue at a per annum rate 2% greater than
the rate which would otherwise be applicable.
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend existing
Revolving Loans into a subsequent permissible Interest Period or to convert
Revolving Loans into Revolving Loans of another interest rate type; provided,
however, that (i) except as provided in Section 3.8, Eurodollar Loans may be
converted into Base Rate Loans or extended as Eurodollar Loans for new Interest
Periods only on the last day of the Interest Period applicable thereto, (ii)
Revolving Loans extended as, or converted into, Eurodollar Loans shall be
subject to the terms of the definition of "Interest Period" set forth in Section
1.1 and shall be in such minimum amounts as provided in Section 2.1(b)(ii),
(iii) no more than six (6) Eurodollar Loans which are Revolving Loans shall be
outstanding hereunder at any time (it being understood that, for purposes
hereof, Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a new
Eurodollar Loan with a single Interest Period) and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion (or telephonic notice promptly confirmed
in writing) to the office of the Agent specified in Schedule 2.1(a), or at such
other office as the Agent may designate in writing, prior to 10:00 A.M. (San
Francisco, California time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Base Rate Loan, and on the third Business
Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Revolving Loans to be so extended or converted, the types of
Revolving Loans into which such Revolving Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. In the event
the Borrower fails to request extension or conversion of any Eurodollar Loan in
accordance with this Section 3.2, or any such conversion or extension is not
permitted or required by this Section 3.2, then such Eurodollar Loan shall be
automatically converted into a Base Rate Loan at the end of the Interest Period
applicable thereto. The Agent shall give each Lender notice as
Page 34
promptly as practicable of any such proposed extension or conversion affecting
any Revolving Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay Loans in
whole or in part from time to time; provided, however, that each partial
prepayment of Loans shall be in a minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof (or, the then remaining
principal balance of the Revolving Loans, if less) or, in the case of Swingline
Loans, in a minimum principal amount of $500,000 and multiples of $100,000 in
excess thereof. Subject to the foregoing terms, amounts prepaid under this
Section 3.3(a) shall be applied as the Borrower may elect; provided that if the
Borrower shall fail to specify its elected application with respect to any
voluntary prepayment, such voluntary prepayment shall be applied first to
Swingline Loans and then to Revolving Loans, and with respect to Revolving Loans
first to Base Rate Loans and then to Eurodollar Loans in direct order of
Interest Period maturities. All prepayments under this Section 3.3(a) shall be
subject to Section 3.12, but otherwise without premium or penalty and shall be
accompanied by interest on the principal amount prepaid through the date of
prepayment.
(b) Mandatory Prepayments.
(i) (A) Revolving Committed Amount. If at any time, the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations plus
Swingline Loans shall exceed the Revolving Committed Amount, the Borrower
immediately shall prepay the Revolving Loans and (after the Revolving Loans have
been repaid) cash collateralize the LOC Obligations, in an amount sufficient to
eliminate such excess.
(B) LOC Committed Amount. If at any time, the sum of the aggregate principal
amount of LOC Obligations shall exceed the LOC Committed Amount, the Borrower
immediately shall cash collateralize the LOC Obligations in an amount sufficient
to eliminate such excess.
(C) Swingline Commitment. If at any time, the sum of the Swingline Loans shall
exceed the Swingline Commitment, the Borrower immediately shall prepay the
Swingline Loans in an amount sufficient to eliminate such excess.
(ii) (A) Asset Dispositions. Immediately upon the occurrence of any Asset
Disposition Prepayment Event the Borrower shall prepay the Loans in an aggregate
amount equal to 100% of the Net Cash Proceeds of the related Asset Disposition
not applied (or caused to be applied) by the Borrower during the related
Application Period to make Eligible Reinvestments as contemplated by the terms
of Section 7.5(g) (such prepayment to be applied as set forth in clause (v)
below).
(B) Involuntary Dispositions. Immediately upon the occurrence of an Involuntary
Disposition Prepayment Event, the Borrower shall prepay the Loans in an
aggregate amount equal to 100% of the Excess Proceeds not used to make Eligible
Reinvestments (such prepayment to be applied as set forth in clause (v) below).
(iii) Debt Issuances. Immediately upon the occurrence of a Debt Issuance
Prepayment Event, the Borrower shall prepay the Loans in an aggregate amount
equal to 100% of the Net Cash Proceeds of the related Debt Issuance (such
prepayment to be applied as set forth in clause (v) below).
(iv) Equity Issuances. Immediately upon the occurrence of an Equity
Page 35
Issuance Prepayment Event, the Borrower shall prepay the Loans in an aggregate
amount equal to 50% of the Net Cash Proceeds of the related Equity Issuance
(such prepayment to be applied as set forth in clause (v) below).
(v) Application of Mandatory Prepayments. Subject to the next succeeding
paragraph, all amounts required to be paid pursuant to this Section 3.3(b) shall
be applied as follows: (A) with respect to all amounts prepaid pursuant to
Section 3.3(b)(i)(A), to Revolving Loans and (after the Revolving Loans have
been repaid) to a cash collateral account in respect of LOC Obligations, (B)
with respect to all amounts prepaid pursuant to Section 3.3(b)(i)(B), to a cash
collateral account in respect of LOC Obligations, (C) with respect to all
amounts prepaid pursuant to 3.3(b)(i)(C), to Swingline Loans, (D) with respect
to all amounts prepaid pursuant to Section 3.3(b)(ii), first to the Swingline
Loans and then Revolving Loans and (after all such Loans have been repaid) to a
cash collateral account in respect of LOC Obligations (with a corresponding
reduction in the Revolving Committed Amount in an amount equal to all amounts
applied, or available to be applied, to Revolving Loans and in respect of LOC
Obligations pursuant to this clause (D)) and (E) with respect to all amounts
prepaid pursuant to Section 3.3(b)(iii) or (iv), first to the Swingline Loans
and then to Revolving Loans and (after all Revolving Loans and Swingline Loans
have been repaid) to a cash collateral account in respect of LOC Obligations.
Within the parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Loans in direct order of
Interest Period maturities. All prepayments under this Section 3.3(b) shall be
subject to Section 3.12, but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid through the date of
prepayment.
Notwithstanding the foregoing, to the extent that any mandatory prepayment
required under this Section 3.3 would have the effect of reducing the Revolving
Committed Amount below the amount necessary to support LOC Obligations, such
portion of the prepayment shall be applied to a cash collateral account in
respect of such LOC Obligations and the Revolving Committed Amount shall not be
reduced thereby.
(vi) Prepayment Account. If the Borrower is required to make a mandatory
prepayment of Eurodollar Loans under this Section 3.3(b), the Borrower shall
have the right, as long as no Default or Event of Default then exists, in lieu
of making such prepayment in full, to deposit an amount equal to such mandatory
prepayment with the Agent in a cash collateral account maintained (pursuant to
documentation reasonably satisfactory to the Agent) by and in the sole dominion
and control of the Agent. Any amounts so deposited shall be held by the Agent as
collateral for the prepayment of such Eurodollar Loans and shall be applied to
the prepayment of the applicable Eurodollar Loans at the end of the current
Interest Periods applicable thereto. At the request of the Borrower, amounts so
deposited shall be invested by the Agent in Cash Equivalents maturing prior to
the date or dates on which it is anticipated that such amounts will be applied
to prepay such Eurodollar Loans; any interest earned on such Cash Equivalents
will be for the account of the Borrower and the Borrower will deposit with the
Agent the amount of any loss on any such Cash Equivalents to the extent
necessary in order that the amount of the prepayment to be made with the
deposited amounts may not be reduced.
3.4 Termination and Reduction of Revolving Committed Amount.
(a) Voluntary Reductions. The Borrower may from time to time permanently reduce
or terminate the Revolving Committed Amount in whole or in part (in minimum
aggregate amounts of $5,000,000 or in integral
Page 36
multiples of $1,000,000 in excess thereof (or, if less, the full remaining
amount of the then applicable Revolving Committed Amount)) upon five Business
Days' prior written notice to the Agent; provided, however, no such termination
or reduction shall be made which would cause the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations plus the
aggregate amount of outstanding Swingline Loans to exceed the Revolving
Committed Amount, unless, concurrently with such termination or reduction, the
Revolving Loans are repaid to the extent necessary to eliminate such excess. The
Agent shall promptly notify each affected Lender of receipt by the Agent of any
notice from the Borrower pursuant to this Section 3.4(a).
(b) Mandatory Reductions. The Revolving Committed Amount automatically shall be
permanently reduced from time to time in accordance with the terms of Section
3.3(b)(v).
(c) Maturity Date. Unless terminated sooner pursuant to Section 3.4(a), Section
8.2 or Section 10.3(h), the Revolving Commitments of the Lenders, the LOC
Commitment of the Issuing Lender and Swingline Commitment of the Swingline
Lender shall automatically terminate on the Maturity Date.
(d) General. The Borrower shall pay to the Agent for the account of the Lenders
in accordance with the terms of Section 3.5(a), on the date of each termination
or reduction of the Revolving Committed Amount, the Unused Fee accrued through
the date of such termination or reduction on the amount of the Revolving
Committed Amount so terminated or reduced.
3.5 Fees.
(a) Unused Fee. In consideration of the Revolving Commitments of the Lenders
hereunder, the Borrower promises to pay to the Agent for the account of each
Lender a fee (the "Unused Fee") on the Unused Revolving Committed Amount
computed at a per annum rate for each day during the applicable Unused Fee
Calculation Period (hereinafter defined) at a rate equal to the Applicable
Percentage in effect from time to time. The Unused Fee shall commence to accrue
on the Closing Date and shall be due and payable in arrears on the last Business
Day of each March, June, September and December (and on any date that the
Revolving Committed Amount is reduced and on the Maturity Date) for the
immediately preceding quarter (or portion thereof) (each such quarter or portion
thereof for which the Unused Fee is payable hereunder being herein referred to
as an "Unused Fee Calculation Period"), beginning with the first of such dates
to occur after the Closing Date.
(b) Letter of Credit Fee. In consideration of the issuance of standby Letters of
Credit hereunder, the Borrower promises to pay to the Agent for the account of
each Lender a fee (the "Letter of Credit Fee") on such Lender's Revolving
Commitment Percentage of the average daily maximum amount available to be drawn
under each such Letter of Credit computed at a per annum rate for each day from
the date of issuance to the date of expiration equal to the Applicable
Percentage. The Letter of Credit Fee will be payable quarterly in arrears on the
last Business Day of each March, June, September and December for the
immediately preceding quarter (or a portion thereof).
(c) Issuing Lender Fees. In addition to the Letter of Credit Fee payable
pursuant to clause (b) above the Borrower promises to pay to each Issuing Lender
without sharing by the other Lenders (i) a letter of credit fronting fee of
0.125% on the average daily maximum amount available to be drawn under each
Letter of Credit (other than the Existing Letters of Credit except in connection
with renewals, modifications or extension of the Existing Letters of Credit)
issued by
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such Issuing Lender computed at a per annum rate for each day from the date of
issuance to the date of expiration (which fronting fee shall be payable
quarterly in arrears on the last day of each March, June, September and December
for the immediately preceding quarter (or a portion thereof)) and (ii) the
customary charges from time to time of the Issuing Lender with respect to the
issuance, amendment, transfer, administration, cancellation and conversion of,
and drawings under, such Letters of Credit.
(d) Agent's Fees. The Borrower promises to pay to the Agent, for its own
account, for the account of each Issuing Lender and for the account of the
Arranger, as applicable, the fees referred to in the Agent's Fee Letter.
3.6 Capital Adequacy.
If any Lender has determined, after the date hereof, that the adoption or the
becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy), then, upon notice from
such Lender to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto.
3.7 Limitation on Eurodollar Loans.
If on or prior to the first day of any Interest Period for any Eurodollar Loan:
(a) the Agent determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period; or
(b) the Required Lenders determine (which determination shall be conclusive) and
notify the Agent that the Eurodollar Rate will not adequately and fairly reflect
the cost to the Lenders of funding Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base
Rate Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate
Loans in accordance with the terms of this Credit Agreement.
3.8 Illegality.
Notwithstanding any other provision of this Credit Agreement, in the event that
it becomes unlawful for any Lender or its Applicable Lending Office to make,
maintain, or fund Eurodollar Loans hereunder, then such Lender shall promptly
notify the Borrower thereof and such Lender's
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obligation to make or Continue Eurodollar Loans and to Convert Base Rate Loans
into Eurodollar Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Loans (in which case the provisions of
Section 3.10 shall be applicable).
3.9 Requirements of Law.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to any tax,
duty, or other charge with respect to any Eurodollar Loans, its Notes, or its
obligation to make Eurodollar Loans, or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending Office) under this
Credit Agreement or its Notes in respect of any Eurodollar Loans (other than
taxes imposed on the overall income of such Lender by the jurisdiction in which
such Lender has its principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special deposit,
assessment, or similar requirement (other than the Eurodollar Reserve Percentage
utilized in the determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable Lending Office),
including the Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office) or the
London interbank market any other condition affecting this Credit Agreement or
its Notes or any of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Agent), suspend the obligation of such Lender to make or
Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans,
until the event or condition giving rise to such request ceases to be in effect
(in which case the provisions of Section 3.10 shall be applicable); provided
that such suspension shall not affect the right of such Lender to receive the
compensation so requested. Each Lender shall promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this Section
3.9 and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this Section 3.9 shall furnish to the
Borrower and the Agent a statement setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may
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use any reasonable averaging and attribution methods.
3.10 Treatment of Affected Loans.
If the obligation of any Lender to make any Eurodollar Loan or to Continue, or
to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to
Section 3.7, 3.8 or 3.9 hereof, such Lender's Eurodollar Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Loans (or, in the case of a
Conversion, on such earlier date as such Lender may specify to the Borrower with
a copy to the Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 3.7, 3.8 or 3.9 hereof that
gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied to
such Lender's Eurodollar Loans shall be applied instead to its Base Rate Loans;
and
(b) all Loans that would otherwise be made or Continued by such Lender as
Eurodollar Loans shall be made or Continued instead as Base Rate Loans, and all
Base Rate Loans of such Lender that would otherwise be Converted into Eurodollar
Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.7, 3.8 or 3.9 hereof that gave rise to the
Conversion of such Lender's Eurodollar Loans pursuant to this Section 3.10 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
held pro rata (as to principal amounts, interest rate basis, and Interest
Periods) in accordance with their respective Commitments.
3.11 Taxes.
(a) Any and all payments by the Borrower to or for the account of any Lender or
the Agent hereunder or under any other Credit Document shall be made free and
clear of and without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender (or its Applicable Lending Office) or the
Agent (as the case may be) operates its business or is organized or any
political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable under this Credit Agreement or any
other Credit Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.11) such
Lender or the Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Agent, at its address referred to in Section 10.1,
the original or a certified copy of a receipt
Page 40
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future stamp
or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Credit Agreement or
any other Credit Document or from the execution or delivery of, or otherwise
with respect to, this Credit Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 3.11) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender that is not a United States person under Section 7701(a)(30) of
the Code, on or prior to the date of its execution and delivery of this Credit
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
W-8 BEN or W-8 ECI, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which reduces
to zero the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Credit Agreement is effectively connected
with the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and/or (iii) any other form or
certificate required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that
such Lender is entitled to an exemption from tax on payments pursuant to this
Credit Agreement or any of the other Credit Documents.
(e) For any period with respect to which a Lender has failed to provide the
Borrower and the Agent with the appropriate form pursuant to Section 3.11(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 3.11(a) or
3.11(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower, at the cost and expense of the Lender, shall take such steps as
such Lender shall reasonably request to assist such Lender to recover such
Taxes.
(f) If the Borrower is required to pay additional amounts to or for the account
of any Lender pursuant to this Section 3.11, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its Applicable Lending Office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 3.11 shall survive the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the
Page 41
termination of the Commitments hereunder.
3.12 Compensation.
Upon demand of any Lender (with a copy to the Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless
from any loss, cost or expense incurred by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any Loan other than a
Base Rate Loan on a day other than the last day of the Interest Period for such
Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, Continue or Convert any Loan other
than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to
Section 3.17;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.12, each Lender shall be deemed to have funded each Eurodollar
Loan made by it at the Interbank Offered Rate for such Loan by a matching
deposit or other borrowing in the applicable offshore Dollar interbank market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Loan was in fact so funded. The covenants of the Borrower set forth
in this Section 3.12 shall survive the repayment of the Loans, LOC Obligations
and other obligations under the Credit Documents and the termination of the
Commitments hereunder.
3.13 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan (other than Swingline Loans), each payment or (subject to
the terms of Section 3.3) prepayment of principal of any Loan (other than
Swingline Loans) or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Loans (other than Swingline
Loans) or reimbursement obligations arising from drawings under Letters of
Credit, each payment of Unused Fees, each payment of the Letter of Credit Fee,
each reduction of the Revolving Committed Amount and each conversion or
extension of any Loan (other than Swingline Loans), shall be allocated pro rata
among the Lenders in accordance with the respective principal amounts of their
outstanding Loans of the applicable type and Participation Interests in Loans of
the applicable type and Letters of Credit.
(b) Swingline Loans. The Swingline Lender shall receive, for its own account,
all payments or prepayments of principal and interest with respect to the
Swingline Loans; provided, however, upon the funding of the Participants'
participation interests with respect to a Swingline Loan pursuant to Section
2.3(d), such Participants shall be entitled to
Page 42
receive their pro rata share of any payment or prepayment of principal and
interest with respect to such Swingline Loan.
(c) Advances.
(i) No Lender shall be responsible for the failure or delay by any other Lender
in its obligation to make its ratable share of a borrowing hereunder; provided,
however, that the failure of any Lender to fulfill its obligations hereunder
shall not relieve any other Lender of its obligations hereunder.
(ii) Unless the Borrower or any Lender has notified the Agent prior to the date
any payment is required to be made by it to the Agent hereunder, that the
Borrower or such Lender, as the case may be, will not make such payment, the
Agent may assume that the Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the Agent in
immediately available funds, then:
(A) if the Borrower failed to make such payment, each Lender shall forthwith on
demand repay to the Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid to the
Agent in immediately available funds, at the Federal Funds Rate from time to
time in effect; and
(B) if any Lender failed to make such payment, such Lender shall forthwith on
demand pay to the Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount was made
available by the Agent to the Borrower to the date such amount is recovered by
the Agent (the "Compensation Period") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender does not pay such amount
forthwith upon the Agent's demand therefor, the Agent may make a demand therefor
upon the Borrower, and the Borrower shall pay such amount to the Agent, together
with interest thereon for the Compensation Period at a rate per annum equal to
the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights that the Agent or the Borrower
may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Agent to any Lender with respect to any amount owing under this
subsection (b) shall be conclusive, absent manifest error.
3.14 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Lender under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a Participation Interest in such Loans, LOC Obligations and other
obligations in such amounts, and make such other adjustments from time to
Page 43
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a Participation Interest theretofore sold,
return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a Participation Interest may, to the fullest extent permitted by
law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such Participation Interest as fully as if such
Lender were a holder of such Loan, LOC Obligations or other obligation in the
amount of such Participation Interest. Except as otherwise expressly provided in
this Credit Agreement, if any Lender shall fail to remit to the Agent or any
other Lender an amount payable by such Lender to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Etc.
(a) Generally. The Obligations shall not be deemed to be paid in full until the
same are Fully Satisfied hereunder. Except as otherwise specifically provided
herein, all payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without condition or deduction for any
counterclaim, defense, recoupment or setoff of any kind, at the Agent's office
specified in Schedule 2.1(a) not later than 12:00 noon (San Francisco,
California time) on the date when due. Payments received after such time shall
be deemed to have been received on the next succeeding Business Day. The Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrower
maintained with the Agent (with notice to the Borrower). The Borrower shall, at
the time it makes any payment under this Credit Agreement, specify to the Agent
the Loans, LOC Obligations, Fees, interest or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with the
terms hereof, the Agent shall distribute such payment to the Lenders in such
manner as the Agent may determine to be appropriate in respect of obligations
owing by the Borrower hereunder, subject to the terms of Section 3.13(a)). The
Agent will distribute such payments to such Lenders, if any such payment is
received prior to 12:00 noon (San Francisco, California time) on a Business Day
in like funds as received prior to the end of such Business Day and otherwise
the Agent will distribute such payment to such Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for the period
of such extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly
Page 44
provided otherwise herein, all computations of interest and fees shall be made
on the basis of actual number of days elapsed over a year of 360 days, except
with respect to computation of interest on Base Rate Loans and Swingline Loans
which shall be calculated based on a year of 365 or 366 days, as appropriate.
Interest shall accrue from and include the date of borrowing, but exclude the
date of payment.
(b) Allocation of Payments After Acceleration. Notwithstanding any other
provisions of this Credit Agreement to the contrary, after acceleration of the
Obligations pursuant to Section 8.2, all amounts collected or received by the
Agent or any Lender on account of the Obligations or any other amounts
outstanding under any of the Credit Documents shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys' fees) of the Agent in
connection with enforcing the rights of the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Agent or the Swingline Lender;
THIRD, to the payment of all of the Obligations consisting of accrued fees and
interest;
FOURTH, to the payment of the outstanding principal amount of the Obligations
(including the payment or cash collateralization of the outstanding LOC
Obligations);
FIFTH, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable attorneys' fees) of each of the
Lenders in connection with enforcing its rights under the Credit Documents or
otherwise with respect to the Obligations owing to such Lender;
SIXTH, to all other Obligations and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid pursuant
to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whomever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent
that any amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender from time to time for any drawings
under such Letters of Credit and (B) then, following the expiration of all
Letters of Credit, to all other obligations of the types described in clauses
"FIFTH" and "SIXTH" above in the manner provided in this Section 3.15(b).
3.16 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each Loan made
by such Lender to the Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from
Page 45
time to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 10.3(c), and a
subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable to each Lender hereunder and (iii) the amount of any sum
received by the Agent hereunder from or for the account of the Borrower and each
Lender's share thereof. The Agent will make reasonable efforts to maintain the
accuracy of the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to clause (b) of this Section 3.16 (and, if consistent with the entries
of the Agent, clause (a)) shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Agent to maintain any such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay the Obligations owing
to such Lender.
3.17 Replacement of Affected Lenders.
If (i) any Lender becomes a Defaulting Lender or otherwise defaults in its
Revolving Commitment or (ii) the Borrower is required to make any payments to
any Lender under Section 3.6, Section 3.9 or Section 3.11 in excess of the
proportionate amount (based on the respective Commitments and/or Loans of the
Lenders) of corresponding payments required to be made to the other Lenders, the
Borrower shall have the right, if no Default or Event of Default then exists, to
replace such Lender (the "Replaced Lender") with one or more other Eligible
Assignee or Eligible Assignees, none of whom shall constitute a Defaulting
Lender at the time of such replacement (collectively, the "Replacement Lender"),
provided that (a) at the time of any replacement pursuant to this Section 3.17,
the Replaced Lender and Replacement Lender shall enter into an Assignment and
Acceptance pursuant to which the Replacement Lender shall acquire all or a
portion, as the case may be, of the Commitments and outstanding Loans of, and
participation in Letters of Credit by, the Replaced Lender and (b) all
obligations of the Borrower owing to the Replaced Lender relating to the Loans
so replaced (including, without limitation, such increased costs and excluding
those specifically described in clause (a) above in respect of which the
assignment purchase price has been, or is concurrently being paid) shall be paid
in full to such Replaced Lender concurrently with such replacement. Upon the
execution of the appropriate Assignment and Acceptance, the payment of amounts
referred to in clauses (a) and (b) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of the appropriate Note or Notes
executed by the Borrower, the Replacement Lender shall become a Lender hereunder
and the Replaced Lender shall cease to constitute a Lender hereunder with
respect to such replaced Loans, except with respect to indemnification
provisions under this Credit Agreement, which shall survive as to such Replaced
Lender. Notwithstanding anything to the contrary contained above, (1) the Lender
that acts as the Issuing Lender may not be replaced hereunder at any time that
it has Letters of Credit outstanding hereunder unless arrangements satisfactory
to the Issuing Lender (including the furnishing of a back-up standby letter of
credit in form and substance, and issued by an
Page 46
issuer satisfactory to such Issuing Lender or the depositing of cash collateral
into a cash collateral account maintained with the Agent in amounts and pursuant
to arrangements satisfactory to such Issuing Lender) have been made with respect
to such outstanding Letters of Credit and (2) the Lender that acts as the Agent
may not be replaced hereunder except in accordance with the terms of Section
9.9. The Replaced Lender shall be required to deliver for cancellation its
applicable Notes to be canceled on the date of replacement, or if any such Note
is lost or unavailable, such other assurances or indemnification therefor as the
Borrower may reasonably request.
SECTION 4
CONDITIONS
4.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and to make
the initial Loans or the Issuing Lender to issue the initial Letter of Credit,
whichever shall occur first, shall be subject to satisfaction of the following
conditions:
(a) Executed Credit Documents. Receipt by the Agent of duly executed copies of:
(i) this Credit Agreement, (ii) the Notes (as requested pursuant to Section
2.1(e)), (iii) the Agent's Fee Letter and (iv) all other Credit Documents.
(b) Corporate Documents. Receipt by the Agent of the following:
(i) Charter Documents. Copies of the articles or certificates of incorporation
or other charter documents of the Borrower certified to be true and complete as
of a recent date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary or assistant
secretary of the Borrower to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the Borrower certified by a secretary or
assistant secretary of the Borrower to be true and correct as of the Closing
Date.
(iii) Resolutions. Copies of resolutions of the Board of Directors of the
Borrower approving and adopting the Credit Documents to which it is a party, the
transactions contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of the Borrower to be
true and correct and in force and effect as of the Closing Date.
(iv) Good Standing. Copies of (A) certificates of good standing, existence or
its equivalent with respect to the Borrower certified as of a recent date by the
appropriate Governmental Authorities of the state or other jurisdiction of
incorporation and each other jurisdiction in which the failure to so qualify and
be in good standing could reasonably be expected to have a Material Adverse
Effect and (B) to the extent available, a certificate indicating payment of all
corporate or comparable franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
(v) Incumbency. An incumbency certificate of the Borrower certified by a
secretary or assistant secretary to be true and correct as of the Closing Date.
(c) Opinions of Counsel. The Agent shall have received an opinion, in
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form and substance reasonably satisfactory to the Agent, of counsel to the
Borrower, addressed to the Agent and the Lenders, with respect to the corporate
authority of the Borrower, the enforceability of the Credit Documents and such
other matters as the Agent shall reasonably request.
(d) Material Adverse Change. Since October 31, 2000, there shall have been no
development or event relating to or affecting a Consolidated Party which has had
or could reasonably be expected to have a Material Adverse Effect.
(e) Officer's Certificates. The Agent shall have received a certificate or
certificates executed by an Executive Officer of the Borrower as of the Closing
Date, in form and substance satisfactory to the Agent, stating that (A) the
Borrower is in material compliance with all existing financial obligations, (B)
all governmental, shareholder and third party consents and approvals, if any,
required with respect to the Credit Documents and the transactions contemplated
thereby have been obtained, (C) no action, suit, investigation or proceeding is
pending or, to the knowledge of any Executive Officer of the Borrower,
threatened in any court or before any arbitrator or governmental instrumentality
that purports to affect the Borrower or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding could
reasonably be expected to have a Material Adverse Effect, and (D) immediately
after giving effect to the initial borrowings hereunder, (1) no Default or Event
of Default exists, and (2) all representations and warranties contained herein
and in the other Credit Documents are true and correct in all material respects.
(f) Senior Subordinated Notes. The sum of (i) the gross proceeds beneficially
received by the Borrower (excluding any original issue discount and before
taking into account any underwriters' discount) from the issuance by the
Borrower of the Senior Subordinated Notes on terms satisfactory to the Agent and
the Lenders plus (ii) the Revolving Commitment Amount available on the Closing
Date shall be an amount equal to at least $435,000,000. The Agent shall have
received a copy certified by an Executive Officer of the Borrower as true and
complete of the Senior Subordinated Note Indenture, as originally executed and
delivered, together with all exhibits and schedules thereto.
(g) Fees and Expenses. Payment by the Borrower to the Lenders and the Agent of
all fees and expenses relating to the Credit Facilities which are due and
payable on the Closing Date, including, without limitation, payment to the Agent
of the fees set forth in the Agent's Fee Letter.
(h) Termination of Prior Bank Commitments. The Prior Bank Commitments shall have
been (or will be upon the initial borrowing hereunder and the application of the
proceeds thereof) terminated and the obligations of the Borrower thereunder paid
in full and fully satisfied.
(i) Appraisals. The Agent shall have received timber appraisal reports with
respect to all the timberlands owned by the Consolidated Parties, the form,
scope and results of which shall be agreed to by the Agent and the Borrower.
(j) Escrow Account. The Borrower shall have established an escrow account for
the purposes of holding $20,000,000 of the proceeds of the Revolving Loans made
on the Closing Date, which amount will be used solely to repay $20,000,000 in
principal amount of senior notes maturing on August 15, 2002, pursuant to the
Escrow Agreement and other documentation satisfactory in all respects to the
Agent.
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(k) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably requested by any Lender, including, but
not limited to, information regarding litigation, tax, accounting, labor,
insurance, pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership and contingent
liabilities of the Consolidated Parties.
4.2 Conditions to all Extensions of Credit.
The obligations of each Lender to make, convert or extend any Loan and of the
Issuing Lender to issue or extend any Letter of Credit (including the initial
Loans and the initial Letter of Credit) are subject to satisfaction of the
following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 4.1:
(a) The Borrower shall have delivered (i) in the case of any Revolving Loans, an
appropriate Notice of Borrowing or Notice of Extension/Conversion, (ii) in the
case of any Swingline Loan, an appropriate Swingline Loan Request or (iii) in
the case of any Letter of Credit, the Issuing Lender shall have received an
appropriate request for issuance in accordance with the provisions of Section
2.2(b);
(b) The representations and warranties set forth in Section 5 shall, subject to
the limitations set forth therein, be true and correct in all material respects
as of such date (except for those which expressly relate to an earlier date);
provided, however, that the representation in Section 5.12(f) shall be subject
to the accuracy of the Lenders' representation in Section 10.15 as of the same
date;
(c) There shall not have been commenced against any Consolidated Party an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed;
(d) No Default or Event of Default shall exist and be continuing either prior to
or after giving effect thereto; and
(e) Immediately after giving effect to the making of such Loan, in the case of a
request for a Revolving Loan, (and the application of the proceeds thereof) or
to the issuance of such Letter of Credit, as the case may be, (i) the sum of the
aggregate outstanding principal amount of Revolving Loans plus Swingline Loans
plus LOC Obligations shall not exceed the Revolving Committed Amount and (ii)
the LOC Obligations shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, Notice of Extension/Conversion and
each request for a Letter of Credit pursuant to Section 2.2(b) shall constitute
a representation and warranty by the Borrower of the correctness of the matters
specified in subsections (b), (c), (d) and (e) above.
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents to the Agent and each Lender that:
5.1 Financial Condition.
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(a) The audited consolidated balance sheets and income statements of the
Consolidated Parties for the fiscal years ended October 31, 1998, October 31,
1999 and October 31, 2000 (including the notes thereto) (i) have been audited by
PricewaterhouseCoopers LLP, (ii) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and (iii) present
fairly (on the basis disclosed in the footnotes to such financial statements)
the consolidated financial condition, results of operations and cash flows of
the Consolidated Parties as of such date and for such periods. The unaudited
interim balance sheets of the Consolidated Parties as at the end of, and the
related unaudited interim statements of earnings and of cash flows for, each
fiscal quarterly period ended after October 31, 2000 and prior to the Closing
Date (i) have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby and (ii) present fairly (on the basis
disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Consolidated
Parties as of such date and for such periods. During the period from October 31,
2000 to and including the Closing Date, there has been no sale, transfer or
other disposition by any Consolidated Party of any material part of the business
or property of the Consolidated Parties, taken as a whole, and no purchase or
other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Consolidated Parties, taken as a whole, in each case,
which is not reflected in the foregoing financial statements or in the notes
thereto and has not otherwise been disclosed in writing to the Lenders on or
prior to the Closing Date. As of the Closing Date, the Borrower and its
Subsidiaries have no material liabilities (contingent or otherwise) that are not
reflected in the foregoing financial statements or in the notes thereto other
than the Indebtedness evidenced by the Senior Subordinated Notes.
(b) The financial statements delivered pursuant to Section 6.1(a) and (b) have
been prepared in accordance with GAAP (except as may otherwise be permitted
under Section 6.1(a) and (b)) and present fairly (on the basis disclosed in the
footnotes to such financial statements) the consolidated financial condition,
results of operations and cash flows of the Consolidated Parties as of such date
and for such periods.
5.2 No Material Change.
Except as disclosed in reports filed by the Borrower prior to the Closing Date
pursuant to the Securities Exchange Act, since October 31, 2000, there has been
no development or event relating to or affecting a Consolidated Party which has
had or could reasonably be expected to have a Material Adverse Effect.
5.3 Organization and Good Standing.
Each of the Consolidated Parties (a) is duly organized, validly existing and is
in good standing under the laws of the jurisdiction of its incorporation or
organization, (b) has the corporate or other necessary power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged
and (c) is duly qualified as a foreign entity 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, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not reasonably be expected to have a Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations.
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The Borrower has the corporate or other necessary power and authority, and the
legal right, to make, deliver and perform the Credit Documents to which it is a
party, and in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate or other necessary action to
authorize the borrowings and other extensions of credit on the terms and
conditions of this Credit Agreement and to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of the Borrower in connection with the borrowings or other
extensions of credit hereunder or with the execution, delivery, performance,
validity or enforceability of the Credit Documents to which the Borrower is a
party, except for consents, authorizations, notices and filings described in
Schedule 5.4, all of which have been obtained or made or have the status
described in such Schedule 5.4. This Credit Agreement has been, and each other
Credit Document to which the Borrower is a party will be, duly executed and
delivered on behalf of the Borrower. This Credit Agreement constitutes, and each
other Credit Document to which the Borrower is a party when executed and
delivered will constitute, a legal, valid and binding obligation of the Borrower
enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the consummation
of the transactions contemplated therein, nor performance of and compliance with
the terms and provisions thereof by the Borrower will (a) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws or
other organizational or governing documents of such Person, (b) violate,
contravene or materially conflict with any Requirement of Law or any other law,
regulation (including, without limitation, Regulation U or Regulation X), order,
writ, judgment, injunction, decree or permit applicable to it, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any material indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound or (d) result in or require the creation of any Lien (other than
those contemplated in or created in connection with the Credit Documents) upon
or with respect to its properties.
5.6 No Default.
No Consolidated Party is in default in any respect under any contract, lease,
loan agreement, indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its properties is bound
which default could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred or exists except as previously
disclosed in writing to the Lenders.
5.7 Ownership.
Each Consolidated Party is the owner of, and has good and marketable title to,
all of its respective assets and none of such assets is subject to any Lien
other than Permitted Liens.
5.8 Indebtedness.
Page 51
Except as otherwise permitted under Section 7.1, the Consolidated Parties have
no Indebtedness.
5.9 Litigation.
Except as disclosed in Schedule 5.9, there does not exist any pending or
threatened action, suit or legal, equitable, arbitration or administrative
proceeding against any Consolidated Party which could reasonably be expected to
have a Material Adverse Effect.
5.10 Taxes.
Each Consolidated Party has filed, or caused to be filed, all material tax
returns (Federal, state, local and foreign) required to be filed and paid (a)
all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other material taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. The Borrower is not aware as of the Closing Date of any
proposed tax assessments against it or any other Consolidated Party.
5.11 Compliance with Law.
Each Consolidated Party is in compliance with all Requirements of Law and all
other laws, rules, regulations, orders and decrees (including without limitation
Environmental Laws) applicable to it, or to its properties, unless such failure
to comply could not reasonably be expected to have a Material Adverse Effect. No
Requirement of Law could reasonably be expected to cause a Material Adverse
Effect.
5.12 ERISA.
Except as disclosed and described in Schedule 5.12 attached hereto or as could
not reasonably be expected to result in a Material Adverse Effect:
(a) During the five-year period prior to the date on which this representation
is made or deemed made: (i) no ERISA Event has occurred, and, to the best
knowledge of the Executive Officers of the Borrower, no event or condition has
occurred or exists as a result of which any ERISA Event could reasonably be
expected to occur, with respect to any Plan; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section 412 of
the Code, whether or not waived, has occurred with respect to any Plan; (iii)
each Plan has been maintained, operated, and funded in compliance with its terms
and in material compliance with the provisions of ERISA, the Code, and any other
applicable Federal or state laws; and (iv) no Lien in favor of the PBGC or a
Plan has arisen or is reasonably expected by the Executive Officers of the
Borrower to arise on account of any Plan. To the extent the foregoing
representations relate to a Multiemployer Plan or a Multiple Employer Plan, they
are made to the best knowledge of the Executive Officers of the Borrower.
(b) The actuarial present value of all "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under each Single Employer
Plan, as of the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case, in accordance
with Financial Accounting Standards Board Statement 87, utilizing the actuarial
assumptions used in such Plan's most recent actuarial valuation report), did not
exceed as of such valuation date the fair market value of the assets of such
Plan.
Page 52
(c) Neither any Consolidated Party nor any ERISA Affiliate has incurred, or, to
the best knowledge of the Executive Officers of the Borrower, could be
reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither any Consolidated Party nor
any ERISA Affiliate would become subject to any withdrawal liability under ERISA
if any Consolidated Party or any ERISA Affiliate were to withdraw completely
from all Multiemployer Plans and Multiple Employer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. Neither any Consolidated Party nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization (within the
meaning of Section 4241 of ERISA), is insolvent (within the meaning of Section
4245 of ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best knowledge of the Executive
Officers of the Borrower, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) other than a transaction that is exempted from the
prohibitions of such sections by Section 408 of ERISA or Section 4975 of the
Code (or any administrative or regulatory exemption issued thereunder) or breach
of fiduciary responsibility has occurred with respect to a Plan which has
subjected or may subject any Consolidated Party or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to indemnify
any Person against any such liability.
(e) Neither any Consolidated Party nor any ERISA Affiliates has any material
liability with respect to "expected post-retirement benefit obligations" within
the meaning of the Financial Accounting Standards Board Statement 106. Each Plan
which is a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 and 701-732 of ERISA and Sections 4980B and 9801-9833 of the Code apply
has been administered in compliance in all material respects with the applicable
requirements of such sections.
(f) Neither the execution and delivery of this Credit Agreement nor the
consummation of the financing transactions contemplated thereunder will involve
any transaction which is subject to the prohibitions of Section 406(a)(1)(A)-(D)
of ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Code as a result of a prohibited transaction within the meaning of
Section 4975(c)(1)(A)-(D) of the Code. The representation by the Borrower in the
preceding sentence is made in reliance upon and subject to the accuracy of the
Lenders' representation and warranty in Section 10.15 with respect to their
source of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance company's
general asset account, to the application of Prohibited Transaction Class
Exemption 95-60, 60 Fed. Reg. 35,925 (1995), compliance with the regulations
issued under Section 401(c)(1)(A) of ERISA, or the issuance of any other
prohibited transaction exemption or similar relief, to the effect that assets in
an insurance company's general asset account do not constitute assets of an
"employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan"
within the meaning of Section 4975(e)(1) of the Code.
5.13 Corporate Structure; Capital Stock, Etc.
The corporate capital and ownership structure of the Consolidated Parties as of
the Closing Date is as described in Schedule 5.13. Set forth on
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Schedule 5.13 is a complete and accurate list as of the Closing Date with
respect to each of the Borrower's direct and indirect Subsidiaries of (i)
jurisdiction of incorporation, (ii) number of shares of each class of Capital
Stock outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by the Consolidated Parties and (iv) number
and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto as of
the Closing Date. The outstanding Capital Stock of all such Persons is validly
issued, fully paid and non-assessable and is owned by the Consolidated Parties,
directly or indirectly, in the manner set forth on Schedule 5.13, free and clear
of all Liens (other than those arising under or contemplated in connection with
the Credit Documents). Other than as set forth in Schedule 5.13, none of the
Borrower's Subsidiaries has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to its Capital Stock.
5.14 Governmental Regulations, Etc.
(a) None of the transactions contemplated by this Credit Agreement (including,
without limitation, the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of the Securities Act, the Securities
Exchange Act or any of Regulations U and X. If requested by any Lender or the
Agent, the Borrower will furnish to the Agent and each Lender a statement, in
conformity with the requirements of FR Form U-1 referred to in Regulation U,
that no part of the Letters of Credit or proceeds of the Loans will be used,
directly or indirectly, for the purpose of "buying" or "carrying" any "margin
stock" within the meaning of Regulations U and X, or for the purpose of
purchasing or carrying or trading in any securities.
(b) None of the Consolidated Parties is (i) an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company" as defined
in, or otherwise subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended or (iii) subject to regulation under any other Federal
or state statute or regulation which limits its ability to incur Indebtedness.
5.15 Purpose of Loans and Letters of Credit.
The proceeds of the Loans hereunder shall be used solely by the Borrower (a) to
refinance existing Indebtedness (to which end $20,000,000 of the Revolving Loans
made on the Closing Date shall be deposited on the Closing Date into an escrow
account, which amount shall be used to pay the outstanding principal amount of
the senior notes maturing on August 15, 2002) and (b) to provide for working
capital, commercial paper back up and any other lawful corporate purposes of the
Borrower and its Subsidiaries (including, without limitation, Permitted
Acquisitions). The Letters of Credit shall be used only for or in connection
with credit support required for bonds issued in respect of financings for which
a Borrower is responsible for, directly or indirectly, repayment, appeal bonds,
reimbursement obligations arising in connection with surety and reclamation
bonds, reinsurance and obligations not otherwise aforementioned relating to
transactions entered into by the applicable account party in the ordinary course
of business.
5.16 Environmental Matters.
Except as disclosed and described in Schedule 5.16 or except as could not
Page 54
reasonably be expected to result in a Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real Properties are in
compliance with all applicable Environmental Laws, there is no violation of any
Environmental Law with respect to the Real Properties or the Businesses, and to
the best knowledge of the Executive Officers of the Borrower, there are no
conditions relating to the Real Properties or the Businesses that could give
rise to liability under any applicable Environmental Laws.
(b) None of the Real Properties contains, or to the best knowledge of the
Executive Officers of the Borrower, has previously contained, any Materials of
Environmental Concern at, on or under the Real Properties in amounts or
concentrations that constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice of, or
inquiry from any Governmental Authority alleging any violation, non-compliance,
liability or potential liability pursuant to, or regarding compliance with,
Environmental Laws with regard to any of the Real Properties or the Businesses,
nor does any Executive Officer of the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or disposed of
from the Real Properties, or generated, treated, stored or disposed of at, on or
under any of the Real Properties or any other location, in each case by or on
behalf of any Consolidated Party in violation of, or in a manner that to the
best knowledge of the Executive Officers of the Borrower could give rise to
liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is pending
or, to the best knowledge of the Executive Officers of the Borrower, threatened,
under any Environmental Law to which any Consolidated Party is or will be named
as a party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Consolidated Parties, the Real Properties or the Businesses.
(f) There has been no release, or threat of release, of Materials of
Environmental Concern at or from the Real Properties, or arising from or related
to the operations (including, without limitation, disposal) of any Consolidated
Party in connection with the Real Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that to the best
knowledge of the Executive Officers of the Borrower could give rise to liability
under Environmental Laws.
5.17 Intellectual Property.
Each Consolidated Party owns, or has the legal right to use, all trademarks,
service marks, trade names, trade dress, patents, copyrights, technology,
know-how and processes necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not reasonably be expected to have a Material Adverse Effect.
5.18 Solvency.
The Borrower is Solvent.
Page 55
5.19 Investments.
All Investments of each Consolidated Party are Permitted Investments.
5.20 Disclosure.
Neither this Credit Agreement nor any financial statements delivered to the
Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Consolidated Party in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.
5.21 No Burdensome Restrictions.
No Consolidated Party is a party to any agreement or instrument or subject to
any other obligation or any charter or corporate restriction or any provision of
any applicable law, rule or regulation which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
5.22 Brokers' Fees.
No Consolidated Party has any obligation to any Person in respect of any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Credit Documents.
5.23 Labor Matters.
None of the Consolidated Parties has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five years which
has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 6
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that until such time as this
Credit Agreement has been terminated in accordance with the terms of
Section 10.13:
6.1 Information Covenants.
The Borrower will furnish, or cause to be furnished, to the Agent and each of
the Lenders each of the documents listed below. Reports required to be delivered
pursuant to this Section 6.1 shall be deemed to have been delivered on the same
Business Day that such report is posted electronically on IntraLinks/IntraAgency
by the Agent at the request of the Borrower; provided that (x) upon the request
of the Agent or any Lender, the Borrower shall deliver paper copies of such
reports to the Agent or any Lender who makes a request for such paper copies,
(y) the Borrower shall notify by facsimile the Agent and each Lender of the
posting of any such reports and (z) the Borrower shall continue to provide paper
copies of the compliance certificates required by Section 6.1(c) to the Agent
and each of the Lenders. Except for the compliance certificates required by
Section 6.1(c), the Agent shall have no obligation to request the delivery of or
to keep copies of the reports referred to herein, and shall have no obligation
whatsoever to monitor the Borrower's compliance with any request by a Lender to
provide such reports. Each Lender shall be solely responsible for requesting
delivery of or maintaining copies of any such reports.
Page 56
(a) Annual Financial Statements. As soon as available, and in any event within
90 days after the close of each fiscal year of the Consolidated Parties, a
consolidated balance sheet and income statement of the Consolidated Parties as
of the end of such fiscal year, together with related consolidated statements of
retained earnings and cash flows for such fiscal year, in each case setting
forth in comparative form consolidated figures for the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Agent and whose opinion shall be
to the effect that such financial statements have been prepared in accordance
with GAAP (except for changes with which such accountants concur) and shall not
be limited as to the scope of the audit or qualified as to the status of the
Consolidated Parties as a going concern or any other material qualifications or
exceptions.
(b) Quarterly Financial Statements. As soon as available, and in any event
within 60 days after the close of each of the first three fiscal quarters of
each fiscal year of the Consolidated Parties, a consolidated balance sheet and
income statement of the Consolidated Parties as of the end of such fiscal
quarter, together with related consolidated statements of retained earnings and
cash flows for such fiscal quarter, in each case setting forth in comparative
form consolidated figures for the corresponding period of the preceding fiscal
year, all such financial information described above to be in reasonable form
and detail and reasonably acceptable to the Agent, and accompanied by a
certificate of an Executive Officer of the Borrower to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of the Consolidated Parties and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial statements
provided for in Sections 6.1(a) and 6.1(b) above, a certificate of an Executive
Officer of the Borrower substantially in the form of Exhibit 6.1(c), (i)
demonstrating compliance with the financial covenants contained in Section 6.10
by calculation thereof as of the end of each such fiscal period, (ii) stating
that no Default or Event of Default exists, or if any Default or Event of
Default does exist, specifying the nature and extent thereof and what action the
Borrower propose to take with respect thereto, (iii) demonstrating pursuant to a
Pro Forma Compliance Certificate that, upon giving effect on a Pro Forma Basis
to each Asset Disposition in excess of $10,000,000 consummated in the applicable
period, the Borrower would be in compliance with the financial covenants set
forth in Section 6.10(a)-(c) and (iv) in the case of the certificate delivered
with the financial statements provided for in Section 6.1(a) only, setting forth
information regarding the amount of all Asset Dispositions, Equity Issuances and
Debt Issuances that were made during the applicable fiscal year.
(d) Accountant's Certificate. Within the period for delivery of the annual
financial statements provided in Section 6.1(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Credit Agreement as it relates to accounting and other financial matters and
stating further whether, in the course of their audit, they have become aware of
any Default or Event of Default and, if any such Default or Event of Default
exists, specifying the nature and extent thereof, provided that such accountants
shall not be liable by reason of any failure to obtain knowledge of any such
Default or Event of Default that would not be disclosed in the course of their
audit examination.
Page 57
(e) Reports. Promptly upon transmission or receipt thereof, (i) copies of any
filings and registrations with, and reports to or from, the Securities and
Exchange Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as any Consolidated Party
shall send to its shareholders and all notices (e.g., notices of default) as any
Consolidated Party shall send to a holder of any Indebtedness owed by any
Consolidated Party in its capacity as such a holder and (ii) upon the reasonable
request of the Agent, all statements and reports (including compliance
information) as any Consolidated Party shall send to a holder of any
Indebtedness owed by any Consolidated Party in its capacity as such a holder,
all reports and material written information to and from the United States
Environmental Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and safety
matters, or any successor agencies or authorities concerning environmental,
health or safety matters.
(f) Notices. Upon any Executive Officer of the Borrower obtaining knowledge
thereof, the Borrower will give written notice to the Agent and the Lenders
immediately of (i) the occurrence of an event or condition consisting of a
Default or Event of Default, specifying the nature and existence thereof and
what action the Borrower propose to take with respect thereto, and (ii) the
occurrence of any of the following with respect to any Consolidated Party (A)
the pendency or commencement of any litigation, arbitral or governmental
proceeding against such Person which if adversely determined is likely to have a
Material Adverse Effect or (B) the institution of any proceedings against such
Person with respect to, or the receipt of notice by such Person of potential
liability or responsibility for violation, or alleged violation of any Federal,
state or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which could have a Material Adverse Effect.
(g) ERISA. Promptly (and in any event within 15 Business Days) after any
Executive Officer of the Borrower obtaining knowledge thereof, the Borrower will
give written notice to the Agent of: (i) any event or condition, including, but
not limited to, any Reportable Event, that constitutes, or could reasonably be
expected to lead to, an ERISA Event; (ii) with respect to any Multiemployer
Plan, the receipt of notice as prescribed in ERISA or otherwise of any
withdrawal liability assessed against the Borrower or any ERISA Affiliates, or
of a determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all amounts
which any Consolidated Party or any ERISA Affiliate is required to contribute to
each Plan that is subject to the funding requirements of Section 302 of ERISA
and Section 412 of the Code pursuant to its terms and as required to meet the
minimum funding standard set forth in ERISA and the Code with respect thereto;
or (iv) any change in the funding status of any Plan that could reasonably be
expected to have a Material Adverse Effect, together with a description of any
such event or condition or a copy of any such notice and a statement by an
Executive Officer of the Borrower briefly setting forth the details regarding
such event, condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Borrower with respect thereto.
Promptly upon request, the Borrower shall furnish the Agent and the Lenders with
such additional information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return (Form 5500
series), as well as all schedules and attachments thereto required to be filed
with the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each "plan year" (within the meaning of
Section 3(39)
Page 58
of ERISA).
(h) Environmental. Upon the reasonable written request of the Required Lenders,
the Borrower will furnish or cause to be furnished to the Agent, at the
Borrower' expense, a report of an environmental assessment of reasonable scope,
form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Agent as to the nature
and extent of the presence of any Materials of Environmental Concern on any Real
Properties (as defined in Section 5.16) and as to the compliance by any
Consolidated Party with Environmental Laws at such Real Properties. If the
Borrower fails to deliver such an environmental report within seventy-five (75)
days after receipt of such written request then the Agent may arrange for same,
and the Consolidated Parties hereby grant to the Agent and their representatives
access to the Real Properties believed to be affected to reasonably undertake
such an assessment (including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged for by the Agent
pursuant to this provision will be payable by the Borrower on demand.
(i) Other Information. With reasonable promptness upon any such request, such
other information regarding the business, properties or financial condition of
any Consolidated Party as the Agent or any Lender may reasonably request.
6.2 Preservation of Existence and Franchises.
Except as a result of or in connection with a dissolution, merger or disposition
of a Subsidiary not prohibited by Section 7.4 or Section 7.5, the Borrower will,
and will cause each of its Subsidiaries to, do all things necessary to preserve
and keep in full force and effect its existence, and, where failure to do so
could reasonably be expected to have a Material Adverse Effect, its rights,
franchises and authority.
6.3 Books and Records.
The Borrower will, and will cause each of its Subsidiaries to, keep complete and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
6.4 Compliance with Law.
The Borrower will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and orders, and all applicable restrictions imposed by
all Governmental Authorities, applicable to it and its Property if noncompliance
with any such law, rule, regulation, order or restriction could reasonably be
expected to have a Material Adverse Effect.
6.5 Payment of Taxes and Other Claims.
The Borrower will, and will cause each of its Subsidiaries to, pay and discharge
(a) all taxes, assessments and governmental charges or levies imposed upon it,
or upon its income or profits, or upon any of its properties, before they shall
become delinquent and (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties; provided, however, that no Consolidated Party shall be required
to pay any such tax, assessment, charge, levy or claim which is being contested
in good faith by appropriate proceedings and as to which adequate reserves
therefor have been established in accordance with GAAP, unless the failure to
make any such payment (i) could give rise to an immediate right for completion
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of a foreclosure sale on a Lien securing such amounts or (ii) could reasonably
be expected to have a Material Adverse Effect.
6.6 Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice, and as required by Applicable Law.
(b) In the event that the Consolidated Parties receive Net Cash Proceeds in
excess of $5,000,000 in aggregate amount during any fiscal year of the
Consolidated Parties ("Excess Proceeds") on account of Involuntary Dispositions,
the Borrower shall, within the period of 360 days following the date of receipt
of such Excess Proceeds, apply (or cause to be applied) an amount equal to such
Excess Proceeds to (i) make Eligible Reinvestments (including but not limited to
the repair or replacement of the related Property) or (ii) prepay the Loans (and
cash collateralize LOC Obligations) in accordance with the terms of Section
3.3(b)(ii)(B); provided, however, that such Person shall not undertake
replacement or restoration of such Property unless, after giving pro forma
effect to any Funded Indebtedness to be incurred in connection with such
replacement or restoration, the Borrower would be in compliance with the
financial covenants set forth in Section 6.10(a)-(c) as of the most recent
fiscal quarter end preceding the date of determination with respect to which the
Agent has received the Required Financial Information (assuming, for purposes
hereof, that such Funded Indebtedness was incurred as of the first day of the
four fiscal-quarter period ending as of such fiscal quarter end). Pending final
application of any Excess Proceeds, the Borrower may apply such Excess Proceeds
to temporarily reduce the Revolving Loans or to make Permitted Investments.
6.7 Maintenance of Property; Management of Timberlands.
The Borrower will, and will cause each of its Subsidiaries to, maintain and
preserve its properties and equipment material to the conduct of its business in
good repair, working order and condition, normal wear and tear and Involuntary
Dispositions excepted, and will make, or cause to be made, in such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses. The
Borrower will, and will cause each of its Subsidiaries to, manage its
timberlands in accordance with the guidelines established by the American Forest
& Paper Association's Sustainable Forestry Initiative effective as of the
Closing Date.
6.8 Use of Proceeds.
The Borrower will use the proceeds of the Loans and will use the Letters of
Credit solely for the purposes set forth in Section 5.15.
6.9 Audits/Inspections.
Upon reasonable notice and during normal business hours, the Borrower will, and
will cause each of its Subsidiaries to, permit representatives appointed by the
Agent or the Required Lenders, including, without limitation, independent
accountants, agents, attorneys, and appraisers to visit and inspect its
property, including its books and records, its accounts receivable and
inventory, its facilities and its other business
Page 60
assets, and to make photocopies or photographs thereof and to write down and
record any information such representative obtains and shall permit the Agent or
its representatives to investigate and verify the accuracy of information
provided to the Lenders and to discuss all such matters with the officers,
employees and representatives of such Person.
6.10 Financial Covenants.
(a) Funded Indebtedness to Capitalization Ratio. The Funded Indebtedness to
Capitalization Ratio, as of the last day of each fiscal quarter of the
Consolidated Parties, shall be less than or equal to:
Period Ratio
Closing Date through and including July 31, 2002 62.5%
August 1, 2002 through and including July 31, 2003 60.0%
August 1, 2003 through and including July 31, 2004 57.5%
August 1, 2004 and thereafter 55.0%
(b) Consolidated Net Worth. At all times, the Consolidated Net Worth of the
Borrower shall be equal to or greater than $365,200,000, increased on a
cumulative basis as of the end of each fiscal quarter of the Consolidated
Parties, commencing with the fiscal quarter ending January 31, 2002, by an
amount equal to (x) 50% of Consolidated Net Income (to the extent positive) for
such fiscal quarter and (y) 100% of the Net Cash Proceeds of any Equity
Issuances consummated during such fiscal quarter.
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of the last
day of each fiscal quarter of the Consolidated Parties, shall be greater than or
equal to:
Period Ratio
Closing Date through and including July 31, 2002 1.15 to 1.00
August 1, 2002 through and including July 31, 2003 1.25 to 1.00
August 1, 2003 and thereafter 1.35 to 1.00
6.11 Notice of Ratings Change.
The Borrower shall, no later than fifteen Business Days after any Executive
Officer obtains knowledge of any such change, give notice to the Agent (which
may be by telephone, followed promptly by written notice transmitted by
facsimile with a hard copy sent promptly thereafter) of any change (either
expressly or pursuant to a letter from S&P or Xxxxx'x stating an "implied"
rating) in rating by S&P or Xxxxx'x in respect of the Borrower's senior
unsecured non-credit enhanced long-term debt, together with the details thereof,
and of any announcement by S&P or Xxxxx'x that its rating in respect of such
senior unsecured non-credit enhanced long-term debt is "under review" or that
any such debt rating has been placed on a "CreditWatch List"r or "watch list" or
that any similar action has been taken by S&P or Xxxxx'x.
6.12 Performance of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, perform in all
material respects in accordance with customary trade practices all of its
obligations under the terms of all material agreements, indentures, mortgages,
security agreements or other debt instruments to which it is a party or by which
it is bound; provided, however, that the Borrower or such Subsidiary may contest
any such obligation in good faith and by proper proceedings so long as adequate
reserves are maintained with respect thereto to the extent required by GAAP.
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SECTION 7
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that until such time as this
Credit Agreement has been terminated in accordance with the terms of
Section 10.13:
7.1 Indebtedness.
The Borrower will not permit any of its Subsidiaries to contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other Credit
Documents;
(b) Indebtedness of the Subsidiaries set forth in Schedule 7.1 (and renewals,
refinancings and extensions thereof on terms and conditions no less favorable to
such Person than such existing Indebtedness and in amounts no greater than such
existing Indebtedness at the time of such renewal, refinancing or extension);
(c) purchase money Indebtedness (including obligations in respect of Capital
Leases or Synthetic Leases) hereafter incurred by the Subsidiaries to finance
the purchase of fixed assets provided that (i) the total of all such
Indebtedness (other than Indebtedness set forth in Schedule 7.1) for all such
Persons taken together shall not exceed an aggregate principal amount of
$10,000,000 at any one time outstanding; (ii) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;
(d) obligations of the Subsidiaries in respect of Hedging Agreements entered
into in order to manage existing or anticipated interest rate or exchange rate
risks and not for speculative purposes;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.6;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.1,
other Indebtedness hereafter incurred by the Subsidiaries, provided that (i) the
loan documentation with respect to such Indebtedness shall not contain covenants
or default provisions relating to any Consolidated Party that are more
restrictive than the covenants and default provisions contained in the Credit
Documents, (ii) no Default or Event of Default shall exist before or after
giving effect on a Pro Forma Basis to the incurrence thereof, (iii) the
aggregate principal amount of such Indebtedness shall not exceed $2,000,000 at
any time and (iv) such Indebtedness is permitted under the Senior Subordinated
Note Indenture.
7.2 Liens.
The Borrower will not permit any Consolidated Party to contract, create, incur,
assume or permit to exist any Lien with respect to any of its Property, whether
now owned or hereafter acquired, except for:
(a) Liens in favor of the Agent, if any, to secure the Obligations;
(b) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been
Page 62
established (and as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the ordinary course of
business, provided that such Liens secure only amounts not yet due and payable
or, if due and payable, are unfiled and no other action has been taken to
enforce the same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
(d) Liens (other than Liens created or imposed under ERISA) incurred or deposits
made by any Consolidated Party in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(e) Liens in connection with attachments or judgments (including judgment or
appeal bonds) provided that the judgments secured shall, within 30 days after
the entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall have been discharged within 30 days after the expiration of any
such stay;
(f) easements, rights-of-way, restrictions (including zoning restrictions),
encumbrances in the nature of leases or subleases granted to others, minor
defects or irregularities in title, reservations of mineral, oil and gas and
water or other similar rights existing on the date of acquisitions of any
property by the Borrower or any Subsidiary, encroachments or questions of
locations, boundary and area which an accurate survey may disclose, exceptions
and reservations in United States patents or state deeds, any prohibition or
limitation on the use, occupancy or improvement of land resulting from the
rights of the public or riparian owners to use any waters which may cover the
land and other similar charges or encumbrances, in each case incidental to, and
not interfering with, the ordinary conduct of the business of the Borrower or
any Subsidiary;
(g) Liens on Property of any Person securing purchase money Indebtedness
(including Capital Leases and Synthetic Leases) of such Person permitted under
Section 7.1(c), provided that any such Lien attaches to such Property
concurrently with or within 90 days after the acquisition thereof;
(h) leases or subleases granted to others not interfering in any material
respect with the business of any Consolidated Party;
(i) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Credit Agreement;
(j) Liens in favor of customs and revenue authorities arising as a matter of law
to secure payment of customs duties in connection with the importation of goods;
(k) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 7.6;
Page 63
(l) normal and customary rights of setoff upon deposits of cash in favor of
banks or other depository institutions;
(m) Liens of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection;
(n) Liens of sellers of goods to the Borrower and any of its Subsidiaries
arising under Article 2 of the Uniform Commercial Code or similar provisions of
applicable law in the ordinary course of business, covering only the goods sold
and securing only the unpaid purchase price for such goods and related expenses;
(o) any interest of title of a buyer in connection with, and Liens arising from
UCC financing statements relating to, a sale of receivables permitted by this
Credit Agreement;
(p) Liens existing as of the Closing Date and set forth on Schedule 7.2;
(q) Liens on property of a Person existing at the time such Person is merged
with or into or consolidated with the Borrower or any Subsidiary of the
Borrower; provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Borrower or the Subsidiary;
(r) Liens on property existing at the time of acquisition of the property by the
Borrower or any Subsidiary of the Borrower, provided that such Liens were in
existence prior to the contemplation of such acquisition;
(s) Liens created or assumed in the ordinary course of business of exploring
for, developing or producing oil, gas or other minerals (including borrowings in
connection therewith) on, or any interest in, or on any proceeds from the sale
of, property acquired for such purposes, production therefrom (including the
proceeds thereof), or material or equipment located thereon;
(t) Liens arising from the pledge of any bonds, debentures, notes or similar
instruments which are purchased and held by any remarketing agent for the
account of, or as agent for, the Borrower;
(u) any extension, renewal or replacement, in whole or in part, of any Lien
described in the foregoing clauses (a) through (u); provided that any such
extension, renewal or replacement shall be no more restrictive in any material
respect than the Lien extended, renewed or replaced and shall not extend to any
other Property of the Consolidated Parties other than such item of Property
originally covered by such Lien or by improvement thereof or additions or
accessions thereto;
(v) loggers' Liens and stumpage Liens arising in the ordinary course of business
of the Borrower and its Subsidiaries; and
(w) Liens which are permitted under the Senior Subordinated Note Indenture and
which secure Indebtedness incurred after the Closing Date in compliance with
this Credit Agreement, provided the aggregate principal amount outstanding of
such Indebtedness does not at any time exceed five percent (5%) of the book
value of the Property of the Consolidated Parties, measured as of the most
recently ended fiscal quarter for which the officer's certificate required under
Section 6.1(c) has been delivered.
7.3 Nature of Business.
The Borrower will not permit any Consolidated Party to substantively
Page 64
alter the character or conduct of the business conducted by such Person as of
the Closing Date.
7.4 Consolidation, Merger, Dissolution, etc.
Except in connection with a Permitted Asset Disposition, the Borrower will not
permit any Consolidated Party to enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that, notwithstanding the foregoing
provisions of this Section 7.4, (a) the Borrower may merge or consolidate with
any of its Subsidiaries, provided that the Borrower shall be the continuing or
surviving corporation, (b) any Subsidiary of the Borrower may be merged or
consolidated with or into any other Subsidiary of the Borrower, (c) any
Subsidiary of the Borrower may merge with any Person that is not the Borrower in
connection with an Asset Disposition permitted under Section 7.5, (d) the
Borrower or any Subsidiary of the Borrower may merge with any Person other than
a Consolidated Party in connection with a Permitted Acquisition, provided that,
if such transaction involves the Borrower, the Borrower shall be the continuing
or surviving corporation and (e) any Wholly Owned Subsidiary of the Borrower may
dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a Material
Adverse Effect.
7.5 Asset Dispositions.
The Borrower will not permit any Consolidated Party to make any Asset
Disposition unless (a) such Asset Disposition constitutes an exchange of
Property in the ordinary course of such Consolidated Party's business or the
consideration paid in connection therewith is in cash or Cash Equivalents and in
an amount not less than the fair market value of the Property disposed of, (b)
if such transaction is a Sale and Leaseback Transaction, such transaction is not
prohibited by the terms of Section 7.13, (c) such transaction does not involve
the sale or other disposition of a minority equity interest in any Consolidated
Party, (d) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other Property
concurrently being disposed of in a transaction otherwise permitted under this
Section 7.5, (e) the aggregate proceeds received in cash or Cash Equivalents by
the Consolidated Parties from all of the assets sold or otherwise disposed of by
the Consolidated Parties in any fiscal year shall not exceed $75,000,000, (f) if
such Asset Disposition is for consideration (cash and non-cash) in excess of
$10,000,000, no later than five (5) Business Days prior to such Asset
Disposition, the Borrower shall have delivered to the Agent (i) a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a Pro Forma
Basis to such transaction, the Borrower would be in compliance with the
financial covenants set forth in Section 6.10(a)-(c) and (ii) notification from
the Borrower in form and substance satisfactory to the Agent and specifying the
anticipated date of such Asset Disposition, briefly describing the assets to be
sold or otherwise disposed of and setting forth the net book value of such
assets, the aggregate consideration and the Net Cash Proceeds to be received for
such assets in connection with such Asset Disposition, (g) the Borrower shall,
to the extent required under this Credit Agreement, apply (or cause to be
applied) an amount equal to the Net Cash Proceeds of such Asset Disposition to,
as applicable, (i) prepay or retire debt in accordance with clause (c) of the
definition of Net Cash Proceeds, (ii) make Eligible Reinvestments or (iii)
prepay the Loans (and cash collateralize LOC Obligations) in accordance with the
terms of Section 3.3(b)(ii)(A), (h) such Asset Disposition is permitted under
the Senior Subordinated Note Indenture and (i) no Default or Event of Default
shall exist before or after giving effect to such Asset Disposition. Pending
final
Page 65
application of the Net Cash Proceeds of any Asset Disposition, the Consolidated
Parties may apply such Net Cash Proceeds to temporarily reduce the Revolving
Loans or to make Investments in Cash Equivalents.
7.6 Investments.
The Borrower will not permit any Consolidated Party to make any Investments,
except for:
(a) Investments consisting of cash and Cash Equivalents;
(b) Investments consisting of accounts receivable created, acquired or made by
any Consolidated Party in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(c) Investments consisting of Capital Stock, obligations, securities or other
property received by any Consolidated Party in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors;
(d) Investments existing as of the Closing Date and set forth in Schedule 7.6;
(e) Investments consisting of advances or loans to labor or material suppliers
or customers in the ordinary course of business that do not exceed $10,000,000
in the aggregate at any one time outstanding;
(f) Investments consisting of advances or loans to directors, officers,
employees or agents in the ordinary course of business that do not exceed
$2,000,000 in the aggregate at any one time outstanding;
(g) Investments (i) in the Borrower, (ii) by a Subsidiary of the Borrower in a
Wholly Owned Subsidiary of the Borrower and (iii) so long as the Borrower is in
compliance with Section 7.16, by the Borrower in its Subsidiaries and/or by the
Borrower or any of its Subsidiaries in any Person to the extent required for the
Borrower or any Subsidiary to conduct business with such Person, provided such
Investments pursuant to this cause (iii) do not exceed $5,000,000 in the
aggregate at any one time outstanding;
(h) any Eligible Reinvestment of the proceeds of any Involuntary Disposition as
contemplated by Section 6.6(b) or of any Asset Disposition as contemplated by
Section 7.5(g); or
(i) So long as the Borrower is in compliance with Section 7.16, Investments
consisting of an Acquisition by the Borrower or any Subsidiary of the Borrower,
provided that (i) the Property acquired (or the Property of the Person acquired)
in such Acquisition is used or useful in the same or a similar line of business
as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any
reasonable extensions or expansions thereof), (ii) in the case of an Acquisition
of the Capital Stock of another Person, the board of directors (or other
comparable governing body) of such other Person shall have duly approved such
Acquisition, (iii) the Borrower shall have delivered to the Agent, with respect
to each such Acquisition for an Investment involving consideration (cash and
non-cash) in excess of $10,000,000, (A) a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis,
the Consolidated Parties would be in compliance with the financial covenants set
forth in Section 6.10(a)-(c) and (B) a certificate of an Executive Officer of
the Borrower (1) demonstrating that at least 90% of Consolidated EBITDDA for the
most recently ended fiscal year period for each of the Consolidated Parties and
the acquired Person or Property preceding the date of such
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Acquisition with respect to which the Agent shall have received the Required
Financial Information has been audited in accordance with GAAP, in the case of
the Borrower, as required by Section 6.1(a) and, in the case of the acquired
Person or Property, by an independent certified public accountants of recognized
national standing reasonably acceptable to the Agent (whose opinion shall not be
limited as to the scope or qualified as to going concern status or any other
material qualifications or exceptions) and (2) to the extent that audited
financial information for the acquired Person or Property is required under the
terms of the foregoing clause (1), certifying that the quarterly financial
statements with respect to the Person or Property acquired for each fiscal
quarter period ending after the date of the last audit and immediately prior to
the date of such Acquisition have been prepared in accordance with GAAP (subject
to audit adjustments and the absence of footnotes) and reviewed by independent
certified public accountants of recognized national standing reasonably
acceptable to the Agent, (iv) the representations and warranties made by the
Borrower in any Credit Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (before and after
giving effect thereto) except to the extent such representations and warranties
expressly relate to an earlier date, (v) if such transaction involves the
purchase of an interest in a partnership between the Borrower (or a Subsidiary
of the Borrower) as a general partner and entities unaffiliated with the
Borrower or such Subsidiary as the other partners, such transaction shall be
effected by having such equity interest acquired by a corporate holding company
directly or indirectly wholly-owned by the Borrower newly formed for the sole
purpose of effecting such transaction and (vi) the aggregate consideration
(including cash and non-cash consideration and any assumption of Indebtedness,
but excluding consideration consisting of any Capital Stock of the Borrower
issued to the seller of the Capital Stock or Property acquired in such
Acquisition and consideration consisting of the proceeds of any Equity Issuance
by the Borrower consummated subsequent to the Closing Date and the proceeds of
any Asset Disposition, or Involuntary Disposition consummated subsequent to the
Closing Date) paid by the Consolidated Parties for all such Acquisitions
occurring after the Closing Date shall not exceed ten percent (10%) of
Consolidated Tangible Net Worth; or
(j) Investments in Joint Ventures that do not exceed $50,000,000 in the
aggregate during the term of this Credit Agreement.
7.7 Restricted Payments.
The Borrower will not permit any Consolidated Party to directly or indirectly,
declare, order, make or set apart any sum for or pay any Restricted Payment,
except (a) to make dividends or other distributions payable to the Borrower
(directly or indirectly through Subsidiaries), (b) as expressly permitted by
Section 7.6 or Section 7.9 and (c) to pay dividends to the Borrower's
shareholders and/or repurchase shares of the Borrower's Capital Stock, provided
(i) such payments are permitted under the Senior Subordinated Note Indenture,
(ii) no Default or Event of Default shall exist on the date of, or shall result
from, the making of any such payments, (iii) the aggregate amount paid in any
fiscal year of the Borrower to make such dividends to the Borrower's
shareholders and/or repurchase shares of the Borrower's Capital Stock shall not
exceed Consolidated Net Income for such fiscal year and (iv) the amount of any
payment to make such dividends to the Borrower's shareholders and/or repurchase
shares of the Borrower's Capital Stock shall not, when aggregated with all other
such payments made during the term of this Credit Agreement, exceed the sum of
(I) $10,000,000 and (II) 50% of cumulative Consolidated Net Income since
February 1, 2002 (measured as of the most recently ended fiscal quarter for
which the officer's certificate required under Section 6.1(c) has been
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delivered).
7.8 Limitation on Actions with Respect to Other Indebtedness.
The Borrower will not, nor will it permit any of its Subsidiaries to:
(a) (i) amend or modify any of the terms of any Indebtedness of such Person
(other than Indebtedness arising under the Credit Documents) if such amendment
or modification would add or change any terms in a manner materially adverse to
the Lenders, or (ii) materially shorten the final maturity or average life to
maturity of any such Indebtedness or require any payment thereon to be made
sooner than originally scheduled or increase the interest rate or fees
applicable thereto above applicable market rates, or (iii) make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment of
any such Indebtedness that, as of the Closing Date, has a maturity date after
the Maturity Date, or make (or give any notice with respect thereto) any
redemption or acquisition for value or defeasance (including without limitation,
by way of depositing money or securities with the trustee with respect thereto
before due for the purpose of paying when due), refund, refinance or exchange
with respect thereto, other than (A) prepayments made by the Borrower in
connection with any Asset Disposition permitted under Section 7.5, in the amount
necessary to prepay or retire any Indebtedness either secured by a Permitted
Lien (ranking senior to any Lien of the Agent) on the related Property or
incurred in connection with the acquisition of any Property that is disposed of
in connection with such Asset Disposition, (B) redemptions and/or prepayments in
connection with a refinancing of such Indebtedness permitted under this Credit
Agreement and (C) redemptions and/or prepayments that do not exceed $20,000,000
in the aggregate after the Closing Date and that are reasonably deemed necessary
by the Borrower to consummate amendments (which are permitted hereunder) to the
Borrower's senior note Indebtedness generally;
(b) after the issuance thereof, amend or modify any of the terms of any
Subordinated Indebtedness of such Person if such amendment or modification would
(i) add or change any terms in a manner materially adverse to such Person or to
the Lenders, (ii) materially shorten the final maturity or average life to
maturity thereof, (iii) require any payment thereon to be made sooner than
originally scheduled, (iv) increase the interest rate or fees applicable thereto
or (v) change any subordination provision thereof in a manner adverse to the
Lenders;
(c) make interest payments in respect of any Subordinated Indebtedness in
violation of the applicable subordination provisions;
(d) make (or give any notice with respect thereto) any voluntary or optional
payment or prepayment in respect of any Subordinated Indebtedness;
(e) make (or give any notice with respect thereto) any redemption, acquisition
for value or defeasance (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any Subordinated
Indebtedness; provided, however, that the Consolidated Parties may exchange the
Senior Subordinated Notes issued on the Closing Date for new Senior Subordinated
Notes with substantially identical terms that will be registered under the
Securities Act solely in connection with the exchange offer contemplated under
the Senior Subordinated Note Indenture and consummated in accordance with the
terms of the Registration Rights Agreement (as defined in the Senior
Subordinated Note Indenture, and as in effect on the Closing Date); or
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(f) designate any other Indebtedness of such Person as "Designated Senior Debt"
(as such term is used in the Senior Subordinated Note Indenture) other than
Indebtedness designated as "Designated Senior Debt" as of the Closing Date and
identified as such on Schedule 7.1.
7.9 Transactions with Affiliates.
The Borrower will not permit any Consolidated Party to enter into or permit to
exist any transaction or series of transactions with any officer, director,
shareholder, Subsidiary or Affiliate of such Person other than (a) advances of
working capital to the Borrower, (b) transfers of cash and assets to the
Borrower, (c) intercompany transactions expressly permitted by Section 7.1,
Section 7.4, Section 7.5, Section 7.6, or Section 7.7, (d) normal compensation
and reimbursement of expenses of officers and directors, (e) agreements and
arrangements entered into with employees of the Borrower in connection with
termination of their employment therewith, and (f) except as otherwise
specifically limited in this Credit Agreement, other transactions which are
entered into in the ordinary course of such Person's business on terms and
conditions substantially as favorable to such Person as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
7.10 Fiscal Year; Organizational Documents.
The Borrower will not permit any Consolidated Party to (a) change its fiscal
year or (b) amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational document) or bylaws (or other similar
document) to the extent such change, amendment or modification could reasonably
be expected to have a Material Adverse Effect.
7.11 Limitation on Restricted Actions.
The Borrower will not permit any Consolidated Party to directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Person to (a) pay dividends or make
any other distributions to the Borrower on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation owed to the Borrower, (c) make loans or
advances to the Borrower, (d) sell, lease or transfer any of its Property to the
Borrower, or (e) act as the Borrower and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing under or
by reason of (i) this Credit Agreement and the other Credit Documents, (ii) the
Senior Subordinated Note Indenture and the Senior Subordinated Notes, in each
case as in effect as of the Closing Date, (iii) applicable law, (iv) any
document or instrument governing Indebtedness incurred pursuant to Section
7.1(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (v) any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien or (vi) customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 7.5 pending the consummation of such sale.
7.12 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Credit Agreement to the contrary,
the Borrower will not permit any Consolidated Party to
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(i) permit any Person (other than the Borrower or any Wholly Owned Subsidiary of
the Borrower) to own any Capital Stock of any Subsidiary of the Borrower, except
(A) to qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries or (B) as a result of or in connection with a dissolution,
merger, consolidation or disposition of a Subsidiary not prohibited by Section
7.4 or Section 7.5, (ii) permit any Subsidiary of the Borrower to issue or have
outstanding any shares of preferred Capital Stock or (iii) permit, create,
incur, assume or suffer to exist any Lien on any Capital Stock of any Subsidiary
of the Borrower, except for Permitted Liens.
7.13 Sale Leasebacks.
The Borrower will not permit any Consolidated Party to enter into any Sale and
Leaseback Transaction, except for such transactions that do not involve lease
obligations which in the aggregate would exceed $5,000,000 in any fiscal year
and which are otherwise permitted under this Credit Agreement.
7.14 No Further Negative Pledges.
The Borrower will not permit any Consolidated Party to enter into, assume or
become subject to any agreement prohibiting or otherwise restricting the
existence of any Lien upon any of its Property in favor of the Agent (for the
benefit of the Lenders) for the purpose of securing the Obligations, whether now
owned or hereafter acquired, or requiring the grant of any security for any
obligation if such Property is given as security for the Obligations, except (a)
in connection with any document or instrument governing Indebtedness incurred
pursuant to Section 7.1(c), provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired (or proceeds
thereof) in connection therewith, (b) in connection with any Permitted Lien or
any document or instrument governing any Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien (or proceeds thereof), (c) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of
any Property permitted under Section 7.5, pending the consummation of such sale,
(d) in connection with any document or instrument governing other Indebtedness
the issuance of which would not cause a Default or Event of Default hereunder,
provided that the aggregate amount of each Transaction (for the purposes hereof,
"Transaction" means each class of Indebtedness having separate voting rights)
for the incurrence of such Indebtedness is in excess of $20,000,000, (e)
customary non-assignment provisions in contracts and (f) pursuant to the terms
and conditions contained in the Senior Subordinate Note Indenture.
7.15 Operating Lease Obligations.
The Borrower will not permit any Consolidated Party to enter into, assume or
permit to exist any obligations for the payment of rental under Operating Leases
which in the aggregate for all such Persons would exceed $10,000,000 in any
fiscal year.
7.16 Subsidiaries.
The Borrower will not create, acquire or permit to exist any Subsidiaries to the
extent that the fair market value of Investments (measured on the date such
Investments were made and without giving effect to subsequent changes in value)
by the Borrower and any of its Subsidiaries in all Subsidiaries would exceed in
the aggregate $5,000,000.
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SECTION 8
EVENTS OF DEFAULT
8.1 Events of Default.
An Event of Default shall exist upon the occurrence and during the continuance
of any of the following specified events (each an "Event of Default"):
(a) Payment. The Borrower shall
(i) default in the payment when due of any principal of any of the Loans or of
any reimbursement obligations arising from drawings under Letters of Credit, or
(ii) default, and such default shall continue for three (3) or more Business
Days, in the payment when due of any interest on the Loans or on any
reimbursement obligations arising from drawings under Letters of Credit, or of
any Fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made or deemed to
be made by the Borrower herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect on the date as of which it
was deemed to have been made; or
(c) Covenants. The Borrower shall
(i) default in the due performance or observance of any term, covenant or
agreement contained in Sections 6.2, 6.8, 6.10, or Section 7;
(ii) default in the due performance or observance of any term, covenant or
agreement contained in Sections 6.1(a), (b), (c), (d) or (f) and such default
shall continue unremedied for a period of at least 5 Business Days after the
earlier of an Executive Officer of the Borrower becoming aware of such default
or written notice thereof by the Agent or any Lender; or
(iii) default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in subsections (a), (b), (c)(i) or
(c)(ii) of this Section 8.1) contained in this Credit Agreement or any other
Credit Document and such default shall continue unremedied for a period of at
least 30 days (or such longer period of time as may be provided for in the
relevant Credit Document) after the earlier of an Executive Officer of the
Borrower becoming aware of such default or written notice thereof by the Agent
or any Lender; or
(d) Other Credit Documents. Except as a result of or in connection with a
dissolution, merger or disposition of a Subsidiary not prohibited by Section 7.4
or Section 7.5, any Credit Document shall fail to be in full force and effect or
to give the Agent and/or the Lenders the Liens (if any), rights, powers and
privileges purported to be created thereby, or the Borrower shall so state in
writing; or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to any
Consolidated Party; or
(f) Defaults under Other Agreements.
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(i) Any Consolidated Party shall default in the performance or observance
(beyond the applicable grace period with respect thereto, if any) or any
material obligation or condition of any contract or lease material to the
Consolidated Parties taken as a whole if such default could reasonably be
expected to have a Material Adverse Effect; or
(ii) With respect to any Indebtedness (other than Indebtedness outstanding under
this Credit Agreement) in excess of $5,000,000 in the aggregate for the
Consolidated Parties taken as a whole, (A) either (1) default in any payment
shall occur and continue (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (2) a default in the
observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event or condition shall occur or exist, the effect of which default or other
event or condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause, any such
Indebtedness to become due prior to its stated maturity (beyond any applicable
grace period with respect thereto); or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof; or
(g) Judgments. One or more judgments or decrees shall be entered against one or
more of the Consolidated Parties involving a liability of $5,000,000 or more in
the aggregate (to the extent not paid or fully covered by insurance provided by
a carrier who has acknowledged coverage and has the ability to perform) and any
such judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within 30 days from the entry thereof; or
(h) ERISA. Any of the following events or conditions, if such event or condition
could reasonably be expected to result in taxes, penalties, and other
liabilities to any Consolidated Party in an aggregate amount greater than
$5,000,000: (i) any "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets of any
Consolidated Party or any ERISA Affiliate in favor of the PBGC or a Plan; (ii)
an ERISA Event shall occur with respect to a Single Employer Plan, which is, in
the reasonable opinion of the Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA; (iii) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (A) the termination of such
Plan for purposes of Title IV of ERISA, or (B) any Consolidated Party or any
ERISA Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or insolvency
(within the meaning of Section 4245 of ERISA) of such Plan; or (iv) any
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code), other than a transaction that is exempted from the
prohibitions of such sections by Section 408 of ERISA or Section 4975 of the
Code (or any administrative or regulatory exemption issued thereunder) or breach
of fiduciary responsibility shall occur which could reasonably be expected to
subject any Consolidated Party or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Consolidated Party
or any ERISA Affiliate has agreed or is required to indemnify any person against
any such liability; or
(i) Senior Subordinated Debt Documentation. (i) There shall occur and be
continuing any "Event of Default" (or any comparable term) under, and as defined
in the documents evidencing or governing any Subordinated
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Debt, (ii) any of the Obligations for any reason shall cease to be "Designated
Senior Debt" (or any comparable term) under, and as defined in the documents
evidencing or governing any Subordinated Indebtedness, (iii) any Indebtedness
other than the Obligations shall constitute "Designated Senior Indebtedness" (or
any comparable term) under, and as defined in, the Senior Subordinated Note
Indenture or any other documents evidencing or governing any Subordinated
Indebtedness or (iv) the subordination provisions of the documents evidencing or
governing any Subordinated Indebtedness shall, in whole or in part, terminate,
cease to be effective or cease to be legally valid, binding and enforceable
against any holder of the applicable Subordinated Indebtedness; or
(j) Ownership. There shall occur a Change of Control.
8.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of Default, the Agent
may or, upon the request and direction of the Required Lenders, shall, by
written notice to the Borrower take any of the following actions:
(a) Termination of Commitments. Declare the Commitments terminated whereupon the
Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid Obligations to be due, whereupon the same
shall be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower hereby
promises to pay, upon receipt of such notice) to the Agent additional cash, to
be held by the Agent, for the benefit of the Lenders, in a cash collateral
account as additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Letters of Credits then
outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests created and
existing under the Credit Documents.
Notwithstanding the foregoing, if an Event of Default specified in Section 8.1
(e) shall occur with respect to the Borrower, then, without the giving of any
notice or other action by the Agent or the Lenders, (i) the Commitments
automatically shall terminate, (ii) all of the outstanding Obligations
automatically shall immediately become due and payable and (iii) the Borrower
automatically shall be obligated (and hereby promises) to pay to the Agent
additional cash, to be held by the Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of Credit in
an amount equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
SECTION 9
AGENCY PROVISIONS
9.1 Appointment and Authorization of Agent.
(a) Each Lender hereby irrevocably (subject to Section 9.9) appoints, designates
and authorizes the Agent to take such action on its behalf under the provisions
of this Credit Agreement and each other Credit
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Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Credit Agreement or any other Credit
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Credit 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 Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit Agreement or any other
Credit Document or otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "Agent" herein and in
the other Credit Documents 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 Lender shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the Agent may agree at the request of the
Required Lenders to act for the Issuing Lender with respect thereto; provided,
however, that the Issuing Lender shall have all of the benefits and immunities
(i) provided to the Agent in this Section 9 with respect to any acts taken or
omissions suffered by the Issuing Lender in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Agent" as used in this Section 9 included the Issuing Lender with respect
to such acts or omissions, and (ii) as additionally provided herein with respect
to the Issuing Lender.
9.2 Delegation of Duties.
The Agent may execute any of its duties under this Credit Agreement or any other
Credit Document by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel and other consultants or experts 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 in the
absence of gross negligence or willful misconduct.
9.3 Liability of Agent.
No Agent-Related Person shall (a) be liable for any action taken or omitted to
be taken by any of them under or in connection with this Credit Agreement or any
other Credit Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
the Borrower or any officer thereof, contained herein or in any other Credit
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
Credit Agreement or any other Credit Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Credit Agreement or any other
Credit Document, or for any failure of the Borrower or any other party to any
Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of
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the agreements contained in, or conditions of, this Credit Agreement or any
other Credit Document, or to inspect the properties, books or records of the
Borrower or any Affiliate thereof.
9.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation,
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 Borrower), independent accountants and other experts selected by
the Agent. The Agent shall be fully justified in failing or refusing to take any
action under any Credit Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Credit
Agreement or any other Credit Document in accordance with a request or consent
of the Required Lenders or all the Lenders, if required hereunder, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and participants. Where this Credit Agreement expressly
permits or prohibits an action unless the Required Lenders otherwise determine,
the Agent shall, and in all other instances, the Agent may, but shall not be
required to, initiate any solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 4.1, each Lender that has signed this Credit 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 Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender.
9.5 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 Lenders, unless the Agent shall have received written notice from a
Lender or the Borrower referring to this Credit Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". The Agent will notify the Lenders 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 directed by the Required Lenders in accordance with Section
8.2; provided, however, that unless and until the Agent has received any such
direction, 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 Lenders.
9.6 Credit Decision; Disclosure of Information by Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Agent hereinafter
taken, including any consent to and acceptance of any
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assignment or review of the affairs of the Borrower or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their possession.
Each Lender 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 Borrower and its respective
Subsidiaries, and all applicable Requirements of Law relating to the
transactions contemplated hereby, and made its own decision to enter into this
Credit Agreement and to extend credit to the Borrower hereunder. Each Lender
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 Credit
Agreement and the other Credit Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent herein, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower or any of its respective
Affiliates which may come into the possession of any Agent-Related Person.
9.7 Indemnification of Agent.
Whether or not the transactions contemplated hereby are consummated, the Lenders
shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of the Borrower and without limiting the obligation
of the Borrower to do so), pro rata, and hold harmless each Agent-Related Person
from and against any and all claims, damages, losses, liabilities, costs, and
expenses (including, without limitation, reasonable attorneys' fees) that may be
incurred by or asserted or awarded against any Agent-Related Person, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or proceeding or
preparation of defense in connection therewith) the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans, except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person's breach of
contract, gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute breach of contract, gross negligence or willful misconduct
for purposes of this Section. Without limitation of the foregoing, each Lender
shall reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including reasonable attorneys fees and the allocated
costs of internal counsel) 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 Credit
Agreement, any other Credit 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 Borrower. The undertaking in this Section shall
survive termination of the Commitments, the payment of all Obligations
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hereunder and the resignation or replacement of the Agent.
9.8 Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower and its respective Affiliates as though Bank
of America were not the Agent or the Issuing Lender hereunder and without notice
to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank of America shall have the
same rights and powers under this Credit Agreement as any other Lender and may
exercise such rights and powers as though it were not the Agent or the Issuing
Lender, and the terms "Lender" and "Lenders" include Bank of America in its
individual capacity.
9.9 Successor Agent.
The Agent may resign as Agent upon 30 days' notice to the Lenders. If the Agent
resigns under this Credit Agreement, the Required Lenders shall appoint from
among the Lenders a successor administrative agent for the Lenders which
successor administrative agent shall be consented to by the Borrower at all
times other than during the existence of an Event of Default (which consent of
the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
administrative 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 Section 9 and Sections 10.4 and 10.9 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Credit Agreement. If no successor administrative 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 Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.
9.10 Other Agents; Lead Managers.
None of the Lenders identified on the facing page or signature pages of this
Credit Agreement as a "syndication agent", "documentation agent", "co-agent",
"lead arranger" or "book manager" shall have any right, power, obligation,
liability, responsibility or duty under this Credit Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders so identified in deciding to enter into this Credit
Agreement or in taking or not taking action hereunder.
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SECTION 10
MISCELLANEOUS
10.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid (or pursuant to an invoice arrangement) to a
reputable national overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address, in the
case of the Borrower and the Agent, set forth below, and, in the case of the
Lenders, set forth on Schedule 2.1(a), or at such other address as such party
may specify by written notice to the other parties hereto:
if to the Borrower:
Longview Fibre Company
000 Xxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Senior Vice President Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent:
For payments:
Bank of America, N.A.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Agency Administrative Services
ABA# 000000000
Account #: 3750836479
Reference: Longview Fibre Company
For Notices of Borrowing and Notices of Extension/Conversion
Bank of America, N.A.
Agency Administrative Services
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
For Letter of Credit Applications:
Bank of America, N.A.
Attn: Xxxxxxx Xxxxxx
Mail Code: CA9-703-19-23
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
xxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
For all other notices:
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Bank of America, N.A.
San Francisco Credit Products
Mail Code: CA5-705-12-12
000 Xxxxxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10.2 Right of Set-Off; Adjustments.
Upon the occurrence and during the continuance of any Event of Default, each
Lender (and each of its Affiliates) is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender (or any of
its Affiliates) to or for the credit or the account of the Borrower against any
and all of the obligations of such Person now or hereafter existing under this
Credit Agreement, under the Notes, under any other Credit Document or otherwise,
irrespective of whether such Lender shall have made any demand hereunder or
thereunder and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
under this Section 10.2 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
10.3 Successors and Assigns.
(a) The provisions of this Credit Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign nor otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Indemnified Parties) any
legal or equitable right, remedy or claim under or by reason of this Credit
Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), its Participation Interests) at the time owing to it); provided
that (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender's Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder), determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Agent, shall not be less than $5,000,000 unless each of the Agent and, so
long as no Default or Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Credit Agreement with respect to the Loans or the Commitments (other
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than the Swingline Commitment) assigned, and (iii) the parties to each
assignment shall execute and deliver to the Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, provided that the
Borrower shall have no obligation for any such fee. Subject to acceptance and
recording thereof by the Agent pursuant to subsection (c), from and after the
effective date specified in each Assignment and Acceptance, the Eligible
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Credit Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Credit Agreement (and, in the case of
an Assignment and Acceptance covering all of the assigning Lender's rights and
obligations under this Credit Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 3.11, 3.12
and 10.5). Upon request, the Borrower (at its expense) shall execute and deliver
new or replacement Notes to the assigning Lender and the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Credit
Agreement that does not comply with this subsection shall be treated for
purposes of this Credit Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) The Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at is address referred to in Section 10.1 a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans and LOC Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Credit Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or the
Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Credit Agreement (including all or a portion of its Commitments
and/or the Loans (including such Lender's Participation Interests) owing to it);
provided that (i) such Lender's obligations under this Credit Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Credit Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Credit Agreement and to approve any amendment, modification or
waiver of any provision of this Credit Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification that would (i)
postpone any date upon which any payment of money is scheduled to be paid to
such Participant, (ii) reduce the principal, interest, fees or other amounts
payable to such Participant, (iii) except as the result of or in connection with
a dissolution, merger or disposition of a Consolidated Party not prohibited by
Section 7.4 or 7.5, release all or substantially all of the Guarantors from
their obligations under the Credit Documents or (iv) except as the
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result of or in connection with an Asset Disposition not prohibited by Section
7.5, release all or substantially all of the Collateral. Subject to subsection
(e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 3.6, 3.9, 3.11 and 3.12 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.2 as though it were a Lender, provided
such Participant agrees to be subject to Section 3.14 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment under
Section 3.6, 3.7 or 3.11 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant that is not a United States person under Section
7701(a)(30) of the Code shall not be entitled to the benefits of Section 3.11
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.11(d) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Credit Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank or a bank in the farm
credit banking system; provided that no such pledge or assignment shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) If the consent of the Borrower to an assignment or to an Eligible Assignee
is required hereunder (including a consent to an assignment which does not meet
the minimum assignment threshold specified in clause (i) of the proviso to the
first sentence of Section 10.3(b)), the Borrower shall be deemed to have given
its consent five Business Days after the date notice thereof has been delivered
by the assigning Lender (through the Agent) unless such consent is expressly
refused by the Borrower prior to such fifth Business Day.
(h) Notwithstanding anything to the contrary contained herein, if at any time
Bank of America assigns all of its Commitment and Loans pursuant to subsection
(b) above, Bank of America may (i) upon 30 days' notice to the Borrower and the
Lenders, resign as Issuing Lender and/or (ii) upon 5 days' notice to Borrower
terminate the Swingline Commitment. In the event of any such resignation as
Issuing Lender or termination of the Swingline Commitment, the Borrower shall be
entitled to appoint from among the Lenders a successor Issuing Lender and/or
Swingline Lender hereunder (subject to the consent of such Lender so appointed);
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as Issuing Lender or termination
of the Swingline Commitment. If Bank of America terminates its Swingline
Commitment, it shall retain all the rights of the Swingline Lender provided
hereunder with respect to Swingline Loans made by it and outstanding as of the
effective date of such termination, including the right to require the Lenders
to make Revolving Loans or fund their Participation Interests in outstanding
Swingline Loans pursuant to Section 2.3(d). Bank of America shall retain all the
rights and obligations of the Issuing Lender hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as
Issuing Lender and all LOC Obligations with respect thereto (including the right
to require the Lenders to make
Page 81
Revolving Loans or fund their Participation Interests pursuant to Section 2.2).
(i) (i) Notwithstanding anything to the contrary contained herein, any Lender (a
"Designating Lender") may grant to one or more special purpose funding vehicles
(each, an "SPV"), identified as such in writing from time to time by the
Designating Lender to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Designating Lender would
otherwise be obligated to make to the Borrower pursuant to this Credit
Agreement; provided that (A) nothing herein shall constitute a commitment by any
SPV to make any Loan, (B) if an SPV elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Designating Lender
shall be obligated to make such Loan pursuant to the terms hereof, (C) the
Designating Lender shall remain liable for any indemnity or other payment
obligation with respect to its Commitments hereunder and (D) each such SPV would
satisfy the requirements of Section 3.11 if such SPV was a Lender hereunder. The
making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent as a Loan made by, and as if such Loan
were made by, such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have all the
rights that a Lender making such Loans or portion thereof would have had under
this Credit Agreement; provided, however that each SPV shall have granted to its
Designating Lender an irrevocable power of attorney, to deliver and receive all
communications and notices under this Agreement (and any related documents),
including, without limitation, any Notice of Borrowing and any Notice of
Extension/Conversion, and to exercise on such SPV's behalf, all of such SPV's
voting rights under this Credit Agreement. No additional Note shall be required
to evidence the Loans or portion thereof made by an SPV; and the related
Designating Lender shall be deemed to hold its Note as agent for such SPV to the
extent of the Loans or portion thereof funded by such SPV. In addition, any
payments for the account of any SPV shall be paid to its Designating Lender as
agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or payment under this Credit Agreement for which a Lender would
otherwise be liable for so long as, and to the extent, the Designating Lender
provides such indemnity or makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Credit Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding prior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this
Section 10.3 or otherwise in this Credit Agreement, any SPV may (A) at any time
and without paying any processing fee therefor, assign or participate all or a
portion of its interest in any Loans to the Designating Lender (or to any other
SPV of such Designating Lender) or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Loans and (B) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancements to such SPV. This Section 10.3 may not be amended without the
written consent of any Designating Lender affected thereby.
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10.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Agent or any Lender and the Borrower shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which the Agent or any
Lender would otherwise have. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Agent or the
Lenders to any other or further action in any circumstances without notice or
demand.
10.5 Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses of the Agent in
connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Credit Agreement, the other
Credit Documents, and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and expenses of counsel for the Agent
(including the cost of internal counsel) with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under the Credit
Documents. The Borrower agrees to pay on demand all costs and expenses of the
Agent and the Lenders, if any (including, without limitation, reasonable
attorneys' fees and expenses and the cost of internal counsel), in connection
with any work-out or restructuring relating to the Credit Facilities or any
enforcement (whether through negotiations, legal proceedings, or otherwise) of
any of the Credit Documents.
(b) The Borrower agrees to indemnify and hold harmless each Agent-Related Person
and each Lender and each of their Affiliates and their respective officers,
directors, employees, agents, trustees and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities,
costs, and expenses (including, without limitation, reasonable attorneys' fees)
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the Credit
Documents, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Loans, except to the extent such claim, damage, loss,
liability, cost, or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
breach of contract, gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 10.5 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees not to
assert any claim against any Agent-Related Party, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Credit Documents, any of the transactions contemplated herein or
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the actual or proposed use of the proceeds of the Loans.
(c) Upon receipt by an Indemnified Party of actual notice of an action or
proceeding against such Indemnified Party with respect to which indemnity may be
sought under this letter, such Indemnified Party shall promptly notify the
Borrower in writing; provided that failure so to notify the Borrower shall not
relieve the Borrower from any liability which it may have on account of this
indemnity or otherwise, except to the extent the Borrower shall have been
materially prejudiced by such failure. The Borrower shall, at its option or if
requested, assume the defense of any such action or proceeding, including the
employment of counsel reasonably acceptable to the applicable Indemnified
Party(ies). Any Indemnified Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party,
unless: (i) the Borrower has failed with reasonable promptness to assume the
defense and employ counsel or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include such Indemnified Party, and
such Indemnified Party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the Borrower and which it cannot assert, in a manner
reasonably acceptable to such Indemnified Party, on behalf of or while assuming
the defense of such Indemnified Party; provided that the Borrower shall not in
such event be responsible hereunder for the fees and expenses of more than one
firm of separate counsel in connection with any action or proceeding in the same
jurisdiction, or for additional local counsel. Notwithstanding the foregoing,
the Borrower shall not be liable for any settlement of any action effected
without its written consent. In addition, the Borrower will not, without prior
written consent of such Indemnified Party, settle, compromise or consent to the
entry of any judgment in or otherwise seek to terminate any pending or
threatened action or proceeding in respect of which indemnification may be
sought hereunder (whether or not the Borrower is a party thereto) unless such
settlement, compromise, consent or termination includes an unconditional release
of each Indemnified Party from all losses, claims, damages, liabilities and
expenses arising out of such action or proceeding.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 10.5 shall survive the repayment of the Obligations and the termination
of the Commitments hereunder.
10.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the terms
hereof or thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change, waiver, discharge or termination is in writing
entered into by, or approved in writing by, the Borrower and the Required
Lenders, provided, however, that:
(a) without the written consent of each Lender affected thereby, neither this
Credit Agreement nor any other Credit Document may be amended, changed, waived,
discharged or terminated so as to
(i) extend any Commitment or the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from drawings under
Letters of Credit, or extend or waive any Loan, or any portion thereof,
(ii) reduce the rate or extend the time of payment of interest on any
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Loan or of any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit (other than as a result of waiving the
applicability of any post-default increase in interest rates) or of any Fees,
(iii) reduce or waive the principal amount of any Loan or of any reimbursement
obligation, or any portion thereof, arising from drawings under Letters of
Credit,
(iv) increase the Commitment of a Lender over the amount thereof in effect (it
being understood and agreed that a waiver of any condition precedent set forth
in Section 4.2 or of any Default or Event of Default or mandatory reduction in
the Commitments shall not constitute a change in the terms of any Commitment of
any Lender),
(v) release the Borrower from its obligations under the Credit Documents,
(vi) amend, modify or waive any provision of Section 3.13,
(vii) amend, modify or waive any provision of this Section 10.6, provided that
the class vote provisions of Section 10.6 can be amended by written approval of
each class (without the need for the approval of each member of each class),
(viii) reduce any percentage specified in the definition of Required Lenders, or
(ix) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under (or in respect of) the Credit Documents except as
permitted thereby;
(b) without the written consent of Required Lenders (other than Defaulting
Lenders), no Default or Event of Default may be waived for purposes of Section
4.2(d);
(c) without the written consent of the Agent, no provision of Section 9 may be
amended, changed, waived, discharged or terminated;
(d) without the written consent of the Issuing Lender, no provision of Section
2.2 may be amended, changed, waived, discharged or terminated; and
(e) without the written consent of the Swingline Lender, no provision of Section
2.3 may be amended, changed, waived, discharged or terminated.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow the
Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
10.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each of
which when so executed shall be an original, but all of which shall constitute
one and the same instrument. It shall not be necessary in making proof of this
Credit Agreement to produce or account for more than one such counterpart for
each of the parties hereto. Delivery by
Page 85
facsimile by any of the parties hereto of an executed counterpart of this Credit
Agreement shall be as effective as an original executed counterpart hereof and
shall be deemed a representation that an original executed counterpart hereof
will be delivered.
10.8 Headings.
The headings of the sections hereof are provided for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Credit Agreement.
10.9 Survival.
All indemnities set forth herein, including, without limitation, in Section
2.2(i), 3.11, 3.12, 10.5 or 10.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Borrower herein shall survive until
this Credit Agreement shall be terminated in accordance with the terms of
Section 10.13(b).
10.10 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY PROVIDED THEREIN, THE
OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be brought in
the courts of the State of New York in New York County, or of the United States
for the Southern District of New York, and, by execution and delivery of this
Credit Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. The Borrower further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
10.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Agent or any Lender to serve
process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH PARTY TO THIS CREDIT AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY CREDIT
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO
Page 86
THIS CREDIT AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.11 Severability.
If any provision of any of the Credit Documents is determined to be illegal,
invalid or unenforceable, such provision shall be fully severable and the
remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.12 Entirety.
This Credit Agreement together with the other Credit Documents represent the
entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
10.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or after the
Closing Date when it shall have been executed by the Borrower and the Agent, and
the Agent shall have received copies hereof (telefaxed or otherwise) which, when
taken together, bear the signatures of each Lender, and thereafter this Credit
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until the Obligations are Fully
Satisfied.
10.14 Confidentiality.
Each of the Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Credit Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Credit Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section 10.14, to (i) any Eligible Assignee of or
Participant in, or any prospective Eligible Assignee of or Participant in, any
of its rights or obligations under this Credit Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to Obligations; (g) with the
consent of the Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.14 or (ii)
becomes available to the Agent or any Lender on a nonconfidential basis from a
source other than the Consolidated Parties; or (i) to the National Association
of Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's or
its Affiliates' investment portfolio in connection with
Page 87
ratings issued with respect to such Lender or its Affiliates. For the purposes
of this Section, "Information" means all information received from the Borrower
relating to the Consolidated Parties or their business, other than any such
information that is available to the Agent or any Lender on a nonconfidential
basis prior to disclosure by the Consolidated Parties. Any Person required to
maintain the confidentiality of Information as provided in this Section 10.14
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
10.15 Source of Funds.
Each of the Lenders hereby represents and warrants to the Borrower that at least
one of the following statements is an accurate representation as to the source
of funds to be used by such Lender in connection with the financing hereunder:
(a) the source is an insurance company's general asset account (as defined in
Prohibited Transaction Class Exemption ("PTE") 95-60, 60 Fed. Reg. 35,925
(1995)), and (i) to the extent the assets in such account support any policy
issued by such insurance company before January 1, 1999, such insurance company
has complied with all of the requirements of the regulations issued under
Section 401(c)(1)(A) of ERISA, and (ii) if the assets in such account support
any policy issued on or after January 1, 1999, the aggregate amount of such
general account's reserves and liabilities for the contracts held by or on
behalf of any employee benefit plan does not exceed 10% of the total reserves
and liabilities of such account (as determined in accordance with PTE 95-60,
excluding any separate account liabilities, but including any applicable
surplus) (and, for purposes of this clause (a), all employee benefit plans
maintained by the same employer or any affiliate thereof or by the same employee
organization are deemed to be a single plan);
(b) the source is an insurance company's pooled separate account (as defined in
XXX 00-0, 00 Fed. Reg. 31,092 (1989)) or a bank's collective investment fund (as
defined in PTE 91-38, 56 Fed. Reg. 4,856 (1991)) and (i) the Lender has
disclosed to the Borrower the name of each employee benefit plan whose assets in
such account or fund exceed 10% of the total assets of such account and (ii) the
Lender will comply with the requirements specified in Section III(b) and (c) of
PTE 90-1 or 91-38, as applicable (and, for purposes of this clause (b), all
employee benefit plans maintained by the same employer or any affiliate thereof
or by the same employee organization are deemed to be a single plan);
(c) the source is a governmental plan, as defined in Section 3(32) of ERISA and
Section 414(d) of the Code; or
(d) the source does not include assets of any employee benefit plan that is not
exempt from the coverage of ERISA or any plan that is not exempt from the
coverage of Section 4975 of the Code. As used in this Section 10.15, the terms
"employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA and the term "plan" shall
have the meaning assigned to such term in Section 4975(e)(1) of the Code.
10.16 Regulation D.
Each of the Lenders hereby represents and warrants to the Borrower that
it is a commercial lender, other financial institution or other
"accredited" investor (as defined in SEC Regulation D) which makes or
acquires or loans on the ordinary course of business and that it will
make or acquire Loans for its own account in the ordinary course of
Page 88
business.
10.17 Conflict.
To the extent that there is a conflict or inconsistency between any provision
hereof, on the one hand, and any provision of any Credit Document, on the other
hand, this Credit Agreement shall control.
[Signature Pages to Follow
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Credit Agreement as of the date first above
written.
BORROWER: LONGVIEW FIBRE COMPANY
By:
Name:
Title:
LENDERS: BANK OF AMERICA, N.A.,
Individually, as Administrative Agent, as an Issuing Lender and as Swingline
Lender
By:
Name:
Title:
Page 89
SCHEDULE 2.1(a)
Lenders
Lender Commitment Amount Commitment Percentage
Bank of America, N.A. $ 32,500,000 13.000000000%
Credit Contact:
San Francisco Credit Products
Mail Code: CA5-705-12-12
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Agency Administrative Services
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Bank of Nova Scotia $ 31,000,000 12.000000000%
Credit Contact:
The Bank of Nova Scotia
000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X. #0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lender Commitment Amount Commitment Percentage
Xxxxx Fargo Bank, N.A. $ 31,000,000 12.400000000%
Credit Contact:
Xxxxx Fargo Bank, N.A.
0000 XX Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxx
Telephone: (000) 000-0000
Page 1
Facsimile: (000) 000-0000
Northwest Farm Credit Services, PCA $ 40,000,000 16.000000000%
Credit Contact:
Northwest Farm Credit Services, PCA
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Northwest Farm Credit Services, PCA
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Technical Accounting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lender Commitment Amount Commitment Percentage
U.S. Bank National Association $ 30,500,000 12.200000000%
Credit Contact:
U.S. Bank National Association
000 XX Xxx Xxxxxx, Xxxxx 000
Mail Code: PD-OR-P4CB
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
U.S. Bank National Association
000 XX Xxx Xxxxxx, XX-0
Mail Code: PD-OR-P7LN
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Union Bank of California, N.A. $ 25,000,000 10.000000000%
Credit Contact:
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: J. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Union Bank of California, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Page 2
Lender Commitment Amount Commitment Percentage
Cooperatieve Centrale Raiffeisin - $ 20,000,000 8.000000000%
Boerenleenbank B.A., "Rabobank
Nederland" New York Branch
Credit Contact:
Rabobank International
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Rabobank International
00 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Dell'Aira
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GreenStone Farm Credit Services, $ 20,000,000 8.000000000%
FLCA
Credit Contact:
GreenStone Farm Credit Services, FLCA
0000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000
Attn: Xx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
GreenStone Farm Credit Services, FLCA
0000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lender Commitment Amount Commitment Percentage
American AgCredit, PCA $ 10,000,000 4.000000000%
Credit Contact:
American AgCredit, PCA
000 X. Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
American AgCredit, PCA
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
West Coast Bank $ 10,000,000 4.000000000%
Credit Contact:
Page 3
West Coast Bank
0000 XX Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Xxxx Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (800) 964-6333 ext. 3334
Facsimile: (000) 000-0000
Totals: $250,000,000.00 100.000000000%
SCHEDULE 2.2(a)
Existing Letters of Credit
Issued Under
Credit Agreement
Dated Beneficiary Date Expiry Date Amount
2/24/00 The Travelers Indemnity Company 9/17/01 10/31/02 $2,300,000.00
L/C number 0000000, Bank of America
2/24/00 Xxxxxx Rural Electric 2/7/01 2/6/02 25,000.00
L/C number 0000000, Bank of America
Schedule 2.2(l)
Reimbursement Agreements
Issued Under
Credit Agreement
Dated Beneficiary Date Expiry Date Amount
2/24/00 The Travelers Indemnity Company 9/17/01 10/31/02 $2,300,000.00
L/C number 0000000, Bank of America
2/24/00 Xxxxxx Rural Electric 2/07/01 02/06/02 25,000.00
L/C number 0000000, Bank of America
Schedule 5.4
Required Consents, Authorizations, Notices and Filings
None
Page 4
Schedule 5.9
Litigation
None
Schedule 5.12
ERISA
None
Schedule 5.13
Subsidiaries
Jurisdiction of Percentage of Voting Stock Owned by
Name Incorporation the Company and each Other
Subsidiary
Longfibre Limited Barbados 100%
Longtimber Company of
Oregon Oregon 100%
SCHEDULE 5.16
Environmental Disclosures
None
SCHEDULE 7.1
Indebtedness as of January 24, 2002
A. Short-Term Borrowing
1. Line of credit between Longview Fibre Company and Xxxxxxxx and Xxxxxx Bank
which cannot exceed $15,000,000.
Principal Amount Outstanding:
Balance as of January 24, 2002 $5,000,000
B. Long-Term Borrowing
Industrial Revenue Bond Financing Agreements:
1. Port of Longview Industrial Development Corporation Bond Financing
Agreements, including Loan Agreement, Security Agreement, Reimbursement
Agreement, Remarketing Agreement and Tender Agent Agreement dated December 1,
1984.
Secured by one (1) barge unloading crane, conveyors, stackers and related
equipment in Longview, Washington.
Principal Amount Outstanding:
$5,000,000
Page 5
2. Industrial Development Authority of the County of Alameda Industrial
Revenue Bond Refinancing Agreements, including Bond Purchase Agreement, Loan
Agreement, Security Agreement, Reimbursement Agreement, Remarketing Agreement
and Trust Agreement dated February 1, 1988.
Secured by one (1) X. X. Xxxxxx Flexo Folder Glue Transline 1228 with five
(5) colors and die cut unit, together with related equipment in Oakland,
California.
Principal Amount Outstanding:
$1,750,000
3. Industrial Development Corporation of the City of Seattle Industrial
Revenue Bond Refinancing Agreements, including Bond Purchase Agreement, Loan
Agreement, Security Agreement, Reimbursement Agreement, Remarketing Agreement
and Trust Agreement Dated February 1, 1988.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, one (1) X. X. Xxxxxx Flexo Folder Gluer Midline 924
with five (5) colors and die cut unit, together with related equipment in
Seattle, Washington.
Principal Amount Outstanding:
$2,500,000
4. City of Milwaukee, Wisconsin, Industrial Revenue Bond Refinancing Agreement,
including Bond Purchase Agreements, Loan Agreement, Security Agreement,
Reimbursement Agreement, Remarketing Agreement and Trust Agreement dated
December 1, 1987.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, and one (1) X. X. Xxxxxx Flexo Folder Gluer Transline
1228 with four (4) colors, together with related equipment in Milwaukee,
Wisconsin.
Principal Amount Outstanding:
$1,960,000
5. City of Xxxxxxx Industrial Development Revenue Bond Refinancing Agreements,
including Loan Agreement, Bond Purchase Agreement, Security Agreement,
Reimbursement Agreement, Remarketing Agreement and Trust Agreement dated
February 1, 1988.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, and one (1) X. X. Xxxxxx Flexo Folder Gluer Transline
1228 with four (4) colors and die cut unit, together with related equipment in
Fridley, Minnesota.
Principal Amount Outstanding:
$2,240,000
6. Massachusetts Industrial Financial Agency Industrial Revenue Bond Refinancing
Agreements, including Bond Purchase Agreement, Loan Agreement, Security
Agreement, Reimbursement Agreement, Remarketing Agreement and Trust Agreement
dated December 1, 1987.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Transline 1228 Rapidset
Flexo-Graphic Printer, Folder-Gluer, with four (4) color Rapidset Printing
Page 6
System and Rotary Die cutter and one (1) X. X. Xxxxxx Miniline 718 Rapidset
Flexo-Graphic Printer, Folder-Gluer, with two (2) color Rapidset Printing system
together with related equipment at Springfield, Massachusetts.
Principal Amount Outstanding:
$2,070,000
7. City of Amsterdam Industrial Development Agency Industrial Revenue Bond
Refinancing Agreements, including Installment Sale Agreement, Bond Purchase
Agreement, Security Agreement, Reimbursement Agreement, Remarketing Agreement
and Trust Agreement dated December 1, 1987.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, and one (1) X. X. Xxxxxx Flexo Folder Gluer Transline
1228 with four (4) colors and die cut unit, together with related equipment in
Amsterdam, New York.
Principal Amount Outstanding:
$1,880,000
8. City of Twin Falls Industrial Development Bond Financing Agreements,
including Loan Agreement, Security Agreement, Letter of Credit Agreement,
Remarketing Agreement and Tender Agent Agreement dated December 1, 1985.
Secured by one (1) 98" width BHS Heavy Duty Corrugator and associated equipment
in Twin Falls, Idaho.
Principal Amount Outstanding:
$4,500,000
9. Yakima County Industrial Development Revenue Bond Financing Agreements,
including Bond Purchase Agreement, Security Agreement, Reimbursement Agreement,
Remarketing Agreement and Trust Agreement dated May 1, 1988.
Secured by equipment to update the wet end and dry end of a corrugator and
includes acquisition and installation of a Paser 60G B flute, double glue
machine, auto slitter scorer, double downstackers and allied equipment, one (1)
X. X. Xxxxxx FFG Supermini 718 with four (4) colors and die cut unit, and one
(1) X. X. Xxxxxx FFG Supermini 718 with two (2) colors and die cut unit,
together with related equipment.
Principal Amount Outstanding:
$5,000,000
Senior Notes:
10. Note agreement dated March 31, 1998 between Longview Fibre Company and the
purchasers of the Company's 6.77% Senior Notes due March 31, 2006.
Principal Amount Outstanding:
$13,000,000
11. Note agreement dated March 31, 1998 between Longview Fibre Company and the
purchasers of the Company's 6.92% Senior Notes due March 31, 2008.
Page 7
Principal Amount Outstanding:
$24,000,000
12. Note agreement dated March 31, 1998 between Longview Fibre Company and the
purchasers of the Company's 7.00% Senior Notes due March 31, 2010.
Principal Amount Outstanding:
$15,000,000
13. Note agreement dated December 1, 1994 between Longview Fibre Company and the
purchasers of the Company's 8.84% Senior Notes due December 15, 2004.
Principal Amount Outstanding:
$30,000,000
14. Note agreement dated October 21, 1996 between Longview Fibre Company and the
purchasers of the Company's 7.55% Senior Notes due October 21, 2003.
Principal Amount Outstanding:
$30,000,000
15. Note agreement dated August 25, 1997 between Longview Fibre Company and the
purchasers of the Company's 6.76% Senior Notes due August 15, 2002.
Principal Amount Outstanding:
$20,000,000
16. Note agreement dated September 8, 1997 between Longview Fibre Company and
the purchasers of the Company's 6.86% Senior Notes due September 8, 2003.
Principal Amount Outstanding:
$20,000,000
17. Note agreement dated June 28, 2001 between Longview Fibre Company and the
purchasers of the Company's 8.83% Senior Notes due June 28, 2006.
Principal Amount Outstanding:
$67,500,000
18. Note agreement dated June 28, 2001 between Longview Fibre Company and the
purchasers of the Company's Floating Rate Senior Notes due June 28, 2006.
Principal Amount Outstanding:
$5,000,000
19. $215 million aggregate principal amount of 10% Senior Subordinated Notes due
2009 issued pursuant to an Indenture, dated as of January 25, 2002, between
Longview Fibre Company and U.S. Bank National Association, as Trustee.
Principal Amount at Close January 25, 2002:
$215,000,000
TOTAL: $471,400,000
Page 8
SCHEDULE 7.2
Liens
All items below are also listed on Schedule 7.1 items B.1-B.9
1. Port of Longview Industrial Development Corporation Bond Financing
Agreements, including Loan Agreement, Security Agreement, Reimbursement
Agreement, Remarketing Agreement and Tender Agent Agreement dated December 1,
1984.
Secured by one (1) barge unloading crane, conveyors, stackers and related
equipment in Longview, Washington.
Principal Amount Outstanding:
$5,000,000
2. Industrial Development Authority of the County of Alameda Industrial Revenue
Bond Refinancing Agreements, including Bond Purchase Agreement, Loan Agreement,
Security Agreement, Reimbursement Agreement, Remarketing Agreement and Trust
Agreement dated February 1, 1988.
Secured by one (1) X. X. Xxxxxx Flexo Folder Glue Transline 1228 with five (5)
colors and die cut unit, together with related equipment in Oakland, California.
Principal Amount Outstanding:
$1,750,000
3. Industrial Development Corporation of the City of Seattle Industrial Revenue
Bond Refinancing Agreements, including Bond Purchase Agreement, Loan Agreement,
Security Agreement, Reimbursement Agreement, Remarketing Agreement and Trust
Agreement Dated February 1, 1988.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, one (1) X. X. Xxxxxx Flexo Folder Gluer Midline 924
with five (5) colors and die cut unit, together with related equipment in
Seattle, Washington.
Principal Amount Outstanding:
$2,500,000
4. City of Milwaukee, Wisconsin, Industrial Revenue Bond Refinancing Agreement,
including Bond Purchase Agreements, Loan Agreement, Security Agreement,
Reimbursement Agreement, Remarketing Agreement and Trust Agreement dated
December 1, 1987.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, and one (1) X. X. Xxxxxx Flexo Folder Gluer Transline
1228 with four (4) colors, together with related equipment in Milwaukee,
Wisconsin.
Principal Amount Outstanding:
$1,960,000
5. City of Xxxxxxx Industrial Development Revenue Bond Refinancing Agreements,
including Loan Agreement, Bond Purchase Agreement, Security
Page 9
Agreement, Reimbursement Agreement, Remarketing Agreement and Trust Agreement
dated February 1, 1988.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, and one (1) X. X. Xxxxxx Flexo Folder Gluer
Transline 1228 with four (4) colors and die cut unit, together with related
equipment in Fridley, Minnesota.
Principal Amount Outstanding:
$2,240,000
6. Massachusetts Industrial Financial Agency Industrial Revenue Bond Refinancing
Agreements, including Bond Purchase Agreement, Loan Agreement, Security
Agreement, Reimbursement Agreement, Remarketing Agreement and Trust Agreement
dated December 1, 1987.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Transline 1228 Rapidset
Flexo-Graphic Printer, Folder-Gluer, with four (4) color Rapidset Printing
System and Rotary Die cutter and one (1) X. X. Xxxxxx Miniline 718 Rapidset
Flexo-Graphic Printer, Folder-Gluer, with two (2) color Rapidset Printing system
together with related equipment at Springfield, Massachusetts.
Principal Amount Outstanding:
$2,070,000
7. City of Amsterdam Industrial Development Agency Industrial Revenue Bond
Refinancing Agreements, including Installment Sale Agreement, Bond Purchase
Agreement, Security Agreement, Reimbursement Agreement, Remarketing Agreement
and Trust Agreement dated December 1, 1987.
Secured by one (1) X. X. Xxxxxx Flexo Folder Gluer Supermini 718 with two (2)
colors and die cut unit, and one (1) X. X. Xxxxxx Flexo Folder Gluer Transline
1228 with four (4) colors and die cut unit, together with related equipment in
Amsterdam, New York.
Principal Amount Outstanding:
$1,880,000
8. City of Twin Falls Industrial Development Bond Financing Agreements,
including Loan Agreement, Security Agreement, Letter of Credit Agreement,
Remarketing Agreement and Tender Agent Agreement dated December 1, 1985.
Secured by one (1) 98" width BHS Heavy Duty Corrugator and associated equipment
in Twin Falls, Idaho.
Principal Amount Outstanding:
$4,500,000
9. Yakima County Industrial Development Revenue Bond Financing Agreements,
including Bond Purchase Agreement, Security Agreement, Reimbursement Agreement,
Remarketing Agreement and Trust Agreement dated May 1, 1988.
Secured by equipment to update the wet end and dry end of a corrugator and
includes acquisition and installation of a Paser 60G B flute, double glue
machine, auto slitter scorer, double downstackers and allied equipment, one (1)
X. X. Xxxxxx FFG Supermini 718 with four (4) colors and die cut unit, and one
(1) X. X. Xxxxxx FFG Supermini 718 with two (2) colors and die cut unit,
together with related equipment.
Page 10
Principal Amount Outstanding:
$5,000,000
SCHEDULE 7.6
Investments
As of 01/23/02
Investments in County Clubs $ 57,710.00
Stock - United Merchants and Manufacturers Inc. 1.00
Stock - AG Supply Company 43,473.30
Stock - Pacific Coast Farm Credit Services, ACA 1,000.00
Stock - I F Nursery 283,299.00
TOTAL $ 385,483.30
EXHIBIT 2.1(b)(i)
FORM OF NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Administrative Agent
Agency Administrative Services
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
RE: Credit Agreement dated as of January ___, 2002 among Longview Fibre
Company (the "Borrower"), the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent for the Lenders (in such
capacity, the "Agent") (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement").
DATE: ___________________, 200_
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined shall have
the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Revolving Loan in the
amount of $_________________ to be funded on ___________________, 200_ at the
interest rate option set forth in paragraph 3 below.
3. The interest rate option applicable to the requested Revolving Loan shall be
equal to:
a. the Adjusted Base Rate
---------
b. the Adjusted Eurodollar Rate for an Interest Period
---------
of:
one month
-----------
Page 11
two months
-----------
three months
-----------
six months
-----------
4. On the date of the requested Revolving Loan, immediately after giving effect
to the funding and the application thereof, the aggregate amount of Revolving
Loans outstanding plus the aggregate amount of LOC Obligations outstanding plus
the aggregate amount of Swingline Loans outstanding will be less than or equal
to the then Revolving Committed Amount.
5. On and as of the date of the requested Revolving Loan, immediately after
giving effect to the funding and the application thereof, the representations
and warranties made by the Borrower in any Credit Document are true and correct
in all material respects except to the extent they expressly relate to an
earlier date.
6. On and as of the date of the requested Revolving Loan, both immediately
before and immediately after giving effect to the funding and application
thereof, no Default or Event of Default has occurred or is continuing or would
reasonably be expected to be caused by this Notice of Borrowing.
LONGVIEW FIBRE COMPANY
By:
Name:
Title:
EXHIBIT 2.1(e)
FORM OF REVOLVING NOTE
January ___, 2002
FOR VALUE RECEIVED, LONGVIEW FIBRE COMPANY, a Washington corporation (the
"Borrower"), hereby promises to pay to the order of _____________________, its
successors and assigns (the "Lender"), at the office of Bank of America, N.A.,
as Agent (the "Agent"), at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (or
at such other place or places as the holder hereof may designate), at the times
set forth in the Credit Agreement dated as of January __, 2002 among the
Borrower, the Lenders and the Agent (as it may be amended, modified, restated or
supplemented from time to time, the "Credit Agreement"; all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Credit
Agreement), but in no event later than the Maturity Date, in Dollars and in
immediately available funds, as provided in the Credit Agreement, such Lender's
Revolving Commitment or, if less, the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Section 2.1(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Lender shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
Page 12
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorney's fees.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or on
behalf of the Borrower as provided in Section 10.3(c) of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.
LONGVIEW FIBRE COMPANY,
a Washington corporation
By:
------------------------------
Name:
-----------------------------
Title:
---------------------------
EXHIBIT 2.3(b)
FORM OF SWINGLINE LOAN REQUEST
TO: BANK OF AMERICA, N.A., as Administrative Agent
Agency Administrative Services
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
RE: Credit Agreement dated as of January__, 2002 among Longview Fibre Company
(the "Borrower"), the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent for the Lenders (in such capacity, the
"Agent") (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement").
DATE: ___________________, 200_
1. This Swingline Loan Request is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined shall have
the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Swingline Loan on the
terms set forth below:
(A) Date of requested Swingline Loan
(B) Principal amount of requested
Swingline Loan
3. On the date of the requested Swingline Loan, immediately after giving effect
to the funding and the application thereof, (a) the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of LOC Obligations
outstanding plus the aggregate amount of Swingline Loans outstanding will be
$______________________, which is less than or equal to the then Revolving
Committed Amount and (b) the sum of the aggregate amount of Swingline Loans
outstanding will be $_________________, which is less than or equal to the
Swingline Committed Amount.
4. On and as of the date of the requested Swingline Loan, immediately
Page 13
after giving effect to the funding and application thereof, the representations
and warranties made by the Borrower in any Credit Document are true and correct
in all material respects except to the extent they expressly relate to an
earlier date.
5. On and as of the date of the requested Swingline Loan, both immediately
before and immediately after giving effect to the funding and application
thereof, no Default or Event of Default has occurred or is continuing or would
be caused by this requested Swingline Loan.
LONGVIEW FIBRE COMPANY
By:
Name:
Title:
EXHIBIT 2.3(e)
FORM OF SWINGLINE LOAN NOTE
$______________ __________, 200__
FOR VALUE RECEIVED, LONGVIEW FIBRE COMPANY, (the "Borrower") hereby promises
to pay to the order of ____________________________ (the "Lender"), at the
office of Bank of America, N.A. (the "Administrative Agent") as set forth in
that certain Credit Agreement dated as of January __, 2002 among the Borrower,
the Lenders named therein (including the Lender), and Bank of America, N.A., as
Administrative Agent (as the same may be amended, modified, extended or restated
from time to time, the "Credit Agreement") (or at such other place or places as
the holder of this Swingline Loan Note may designate), the principal amount of
_________________ ($____________) or, if less, the aggregate principal amount of
all advances made by the Lender as Swingline Loans (and not otherwise repaid),
in lawful money and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each Swingline Loan made by the Lender, at such
office, in like money and funds, for the period commencing on the date of each
Swingline Loan until each Swingline Loan shall be paid in full, at the rates
mutually agreeable to the Swingline Lender and the Borrower at the time of the
borrowing.
This Note is one of the Notes referred to in the Credit Agreement and
evidences Swingline Loans made by the Lender thereunder. The Lender shall be
entitled to the benefits of the Credit Agreement. Capitalized terms used in this
Swingline Loan Note have the respective meanings assigned to them in the Credit
Agreement and the terms and conditions of the Credit Agreement are expressly
incorporated herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Swingline Loans evidenced by this Swingline Loan Note upon the occurrence of
certain events (and for payment of collection costs in connection therewith) and
for prepayments of Swingline Loans upon the terms and conditions specified
therein. In the event this Swingline Loan Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorney
fees.
Except as permitted by Section 10.3(b) of the Credit Agreement, this
Swingline Loan Note may not be assigned by the Lender to any other Person.
Page 14
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of each Swingline Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Administrative Agent on its books; provided that the failure of the
Administrative Agent to make any such recordation shall not affect the
obligations of the Borrower to make a payment when due of any amount owing
thereunder or under this Swingline Loan Note in respect of the Swingline Loans
to be evidenced by this Swingline Loan Note, and each such recordation shall be
prima facie evidence of the obligations owing under this Swingline Loan Note
absent manifest error.
This Swingline Loan Note shall be governed by, and construed in accordance
with, the laws of the state of New York.
IN WITNESS WHEREOF, the Borrower has caused this Swingline Loan Note to be
executed as of the date first above written.
LONGVIEW FIBRE COMPANY
By:
Name:
Title:
EXHIBIT 3.2
FORM OF NOTICE OF EXTENSION/CONVERSION
TO: BANK OF AMERICA, N.A., as Administrative Agent
Agency Administrative Services
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
RE: Credit Agreement dated as of January __, 2002 among Longview Fibre Company
(the "Borrower"), the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent for the Lenders (in such capacity, the
"Agent") (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement").
DATE: ___________________, 200_
1. This Notice of Extension/Conversion is made pursuant to the terms of the
Credit Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting that a portion of the
current outstanding Revolving Loans in the amount of $______________ be extended
or converted at the interest rate option set forth in paragraph 3 below.
3. The interest rate option applicable to the extension or conversion of all or
part of the existing Revolving Loans shall be equal to:
a. the Adjusted Base Rate
--------
b. the Adjusted Eurodollar Rate for an Interest Period of:
--------
one month
--------
two months
--------
Page 15
three months
--------
six months
--------
4. Subsequent to the extension or conversion of all or part of the existing
Revolving Loans, the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of LOC Obligations outstanding plus the aggregate amount of
Swingline Loans outstanding will be $______________, which is less than or equal
to the then Revolving Committed Amount.
5. No Default or Event of Default has occurred or is continuing or would be
caused by this Notice of Extension/Conversion.
LONGVIEW FIBRE COMPANY
By:
Name:
Title:
EXHIBIT 6.1(c)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
This Certificate is delivered in accordance with the provisions of
Section 6.1(c) of that Credit Agreement dated as of January __, 2002 (as
amended, modified and supplemented, the "Credit Agreement") among Longview Fibre
Company, a Washington corporation (the "Borrower"), the Lenders identified
therein, and Bank of America, N.A., as Administrative Agent. Terms used but not
otherwise defined herein shall have the same meanings provided in the Credit
Agreement.
The undersigned, being an Executive Officer of Longview Fibre Company, a
Washington corporation, hereby certifies, in my official capacity and not in
my individual capacity, that to the best of my knowledge and belief:
(a) the detailed calculations on the schedule(s) accompanying this
Certificate demonstrate compliance by the Consolidated Parties with the
financial covenants contained in Section 6.10 of the Credit Agreement;
(b) no Default or Event of Default has occurred under the Credit
Agreement (except as indicated on a separate page attached hereto, together with
an explanation of the action taken or proposed to be taken by the Borrower with
respect thereto); and
(d) if this Certificate is being delivered in connection with the
financial statements provided for in Section 6.1(a), the accompanying
schedule(s) set forth information regarding the amount of all Asset
Dispositions, Equity Issuances and Debt Issuances that were made during the
applicable fiscal year.
This the _______________ day of ________________________, 200_.
LONGVIEW FIBRE COMPANY
By:
Name:
Title:
Attachment to Officer's Certificate
Page 16
Computation of Financial Covenants
EXHIBIT 10.3
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance Agreement (this "Assignment") is dated as of
the Effective Date set forth below and is entered into by and between [Insert
name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below, the interest in
and to all of the Assignor's rights and obligations under the Credit
Agreement and any other documents or instruments delivered pursuant thereto
that represents the amount and percentage interest identified below of all of
the Assignor's outstanding rights and obligations under the respective
facilities identified below (including, to the extent included in any such
facilities, Letters of Credit and Swingline Loans) (the "Assigned Interest").
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment, without representation or warranty by
the Assignor.
1. Assignor:
------------------------------
2. Assignee: [, which is an
------------------------------
Affiliate/Approved
Fund 1]
3. Borrower(s): Longview Fibre Company
4. Administrative
Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of January __, 2002
among Longview Fibre Company, the Lenders from time to
time party thereto and Bank of America, as
Administrative Agent.
1 Select as applicable.
6. Assigned Interest:
Page 17
Credit Aggregate
Facility Assigned Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
for all Lenders Assigned Commitment/Loans 2
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Lenders thereunder.
3 Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g. "364 Day
Facility Commitment", "Multi-Year Facility Commitment",etc.).
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Title:
[Consented to and] Accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Title:
[Consented to:]
LONGVIEW FIBRE COMPANY,
a Washington corporation
By:
Title:
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
Credit Agreement dated as of January 25, 2002 in favor of Longview Fibre
Company
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ACCEPTANCE AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action
Page 18
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with any Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Loan Documents"), or any collateral thereunder, (iii)
the financial condition of the Borrower, any of its Subsidiaries or Affiliates
or any other Person obligated in respect of any Loan Document or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or Affiliates
or any other Person of any of their respective obligations under any Loan
Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (ii) it meets all requirements of an
Eligible Assignee under the Credit Agreement, (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section 6.1
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and to purchase the Assigned Interest on the basis of which it
has made such analysis and decision, and (v) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
1.3 Assignee's Address for Notices, etc. Attached hereto as Schedule 1 is all
contact information, address, account and other administrative information
relating to the Assignee.
2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
3. General Provisions. This Assignment shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This
Assignment may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature
page of this Assignment by telecopy shall be effective as delivery of a manually
executed counterpart of this Assignment. This Assignment shall be governed by,
and construed in accordance with, the law of the State of New York.
Page 19
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
ADMINISTRATIVE DETAILS
(Assignee to list names of operations and credit contacts, addresses, phone and
facsimile numbers, electronic mail addresses and account and payment
information)
Page 20
