EXHIBIT 10.53
FIVE YEAR CREDIT AGREEMENT
DATED EFFECTIVE AS OF: JULY 8, 2004
PARTIES: XXXXXXXXX'X, INC. ("BORROWER")
AND: U.S. BANK NATIONAL ASSOCIATION ("LENDER")
ARTICLE I
CERTAIN DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
"Access Laws" means the Americans With Disabilities Act of 1990; the Fair
Housing Amendments Act of 1988; all other federal, state and local laws or
ordinances related to disabled access; and all statutes, rules, regulations,
ordinances, orders of governmental bodies and regulatory agencies and orders and
decrees of any court adopted, enacted or issued with respect thereto; all as now
existing or hereafter amended or adopted.
"Acquired Indebtedness" means unsecured indebtedness of any Person (a)
that is existing at the time such Person is acquired by, or merged or
consolidated with or into, Borrower or a Subsidiary of Borrower, and (b) that is
not created in contemplation of such event.
"Adjusted Consolidated Funded Indebtedness" means the sum of (without
duplication) Consolidated Funded Indebtedness as of any date plus an amount
equal to (i) Consolidated Lease Payments for which Borrower or any of its
Subsidiaries is obligated during the period of four consecutive fiscal quarters
of Borrower ended as of such date or most recently prior thereto times (ii) 8.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Aggregate Commitment" means the Commitment of Lender under Section 3.1 in
the maximum aggregate principal amount at any time outstanding of $100,000,000,
as reduced from time to time pursuant to the terms of this Agreement, and as may
be amended subsequent to this Agreement.
"Agreement" means this Credit Agreement.
"Applicable Rate" means from time to time, the following percentages per
annum based upon the Indebtedness Ratings as set forth below:
APPLICABLE RATE WITH RESPECT
TO:
------------------------------
PRICING INDEBTEDNESS RATINGS LIBOR
LEVEL S&P/MOODY'S FACILITY FEE RATE LOANS
-------------------------------------------------------------------------------------------------------
1 Greater than or equal to A-/A1 0.090% 0.285%
2 Greater than or equal to BBB+/Baa1 but less than A-/A1 0.120% 0.380%
3 Greater than or equal to BBB/Baa2 but less than BBB+/Baa1 0.150% 0.475%
4 Greater than or equal to BBB-/Baa3 but less than BBB/Baa2 0.200% 0.800%
5 Less than BBB-/Baa3 0.250% 1.125%
provided that (a) if a Indebtedness Rating is issued by each of S&P and Moody's,
then the higher of such Indebtedness Ratings shall apply (with the Indebtedness
Rating for Pricing Level 1 being the highest and the Indebtedness Rating for
Pricing Level 5 being the lowest), unless there is a split in Indebtedness
Ratings of more than one Indebtedness Rating, in which case the Pricing Level
that is one level higher than the Pricing Level of the lower Indebtedness Rating
shall apply and (b) if a Indebtedness Rating is issued by only one of S&P or
Moody's, such Indebtedness Rating shall apply. Initially, the Applicable Rate
shall be determined based upon the Indebtedness Ratings on the Closing Date as
evidenced pursuant to Section 7.1(i). Thereafter, each change in the Applicable
Rate resulting from a publicly announced change in the Indebtedness Rating shall
be effective during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such change.
FIVE YEAR CREDIT AGREEMENT Page 1
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of Borrower and its Subsidiaries for the fiscal year ended January 29,
2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of Borrower and its
Subsidiaries, including the notes thereto.
Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, and (b) the date of the Revolving Loan
Termination Date.
"Basis Points" means the mathematical expression of one percent expressed
in terms of 100 basis points being equal to one percent.
"Borrower" means Xxxxxxxxx'x, Inc. a Delaware corporation.
"Borrower's Authorized Representative" means any one of those persons
identified by Borrower to Lender on Exhibit A attached hereto and made part
hereof and any other persons in writing from time to time.
"Borrowing Date" means any date on which a Revolving Advance occurs under
Article III.
"Business Day" means a day that commercial banks are open for business in
Boise, Idaho.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) or 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its Subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 35% or more of the equity securities of
such Person entitled to vote for members of the board of directors or equivalent
governing body of such Person on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above continuing at the time of such election or nomination at least a majority
of that board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors).
"Closing Date" means July 8, 2004.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means Lender's agreement to make loans under Section 3.1.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit B.
"Consolidated EBITDAR" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
before One Time Charges for such period plus (a) the following (without
duplication) to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for
federal, state, local and foreign income taxes payable by Borrower and its
Subsidiaries for such period, (iii) depreciation and amortization expense for
such period, (iv) Consolidated Lease Payments for such period, and (v) without
duplication of One Time Charges deducted from Consolidated Net Income, other
non-recurring expenses of Borrower and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in
FIVE YEAR CREDIT AGREEMENT Page 2
such period, and minus (b) the following (without duplication) to the extent
added or not deducted in calculating such Consolidated Net Income: (w) cash One
Time Charges for such period, (x) all non-recurring, non-cash items increasing
Consolidated Net Income for such period, (y) the amount of any cash expenditures
made during such period related either to (A) non-cash One Time Charges excluded
from Consolidated Net Income in computing Consolidated EBITDAR during any prior
period or (B) non-cash, non-recurring expenses added back to Consolidated Net
Income under clause (a)(v) above in computing Consolidated EBITDAR during any
prior period and (z) non-cash extraordinary gains during such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments and including, without limitation, any convertible or exchangeable
debentures or other debt securities with equity features prior to their
conversion into or exchange for equity, (b) all purchase money indebtedness, (c)
all direct obligations arising under letters of credit (including standby and
commercial), bankers' acceptances and bank guaranties, other than Non-Financial
Letters of Credit, (d) all obligations in respect of the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business), (e) Attributable Indebtedness in respect of capital leases
and Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than Borrower or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which Borrower or a Subsidiary is a
general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for Borrower and
its Subsidiaries on a consolidated basis, the sum (without duplication) of (a)
all interest, premium payments, debt discounts, fees, charges and related
expenses of Borrower and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance
with GAAP, net of interest income, (b) the portion of rent expense of Borrower
and its Subsidiaries with respect to such period under capitalized leases that
is treated as interest in accordance with GAAP, (c) any construction period
interest paid and capitalized; (d) the amount of payments in respect of
Synthetic Lease Obligations that are in the nature of interest, whether or not
treated as interest in accordance with GAAP, and (e) any coupon payments paid in
cash or accrued with respect to the Senior Notes and the related purchase
contracts, whether or not treated as interest in accordance with GAAP.
"Consolidated Lease Payments" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis the aggregate rental or lease expense
(including any contingent or percentage rental expense and any rent offsets, as
applicable) for the applicable period in respect of all rent and lease
obligations under all operating leases for real or personal property, excluding
all payments in respect of capital leases constituting Consolidated Interest
Charges or Indebtedness or in respect of Synthetic Lease Obligations, minus any
rental income of Borrower and its Subsidiaries on a consolidated basis for such
period (including licensee related income from licensees operating on the store
premises of Borrower and its Subsidiaries).
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Adjusted Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDAR for the period of four fiscal quarters of Borrower most
recently ended for which Borrower has delivered financial statements pursuant to
Section 9.1(a) or (b).
"Consolidated Net Income" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries for that period.
"Consolidated Subsidiaries" means at any date any Subsidiary or other
Person the accounts of which would be consolidated with those of Borrower in its
consolidated financial statements as of such date.
"Continuing Reimbursement Agreement for Letters of Credit" means the
agreement substantially in the form of Exhibit C attached hereto and made part
hereof.
"Contractual Obligation" means as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any Event of Default or any event which with the giving of
notice or the passage of time, or both, if not cured, would constitute an Event
of Default.
FIVE YEAR CREDIT AGREEMENT Page 3
"Default Rate" means Lender's Prime Rate.
"Disposal" or "Disposition" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Environmental Laws" means all local, state or federal laws, rules,
regulations, or ordinances pertaining to Hazardous Substances and environmental
regulation, contamination or clean-up including, without limitation, the federal
statutes commonly known as CERCLA and RCRA and all other federal or state lien
or environmental clean-up statutes, all as now existing or hereafter amended or
adopted.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is under common control with Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal (as defined in Section 4203 or 4205,
respectively, of ERISA) by Borrower or any ERISA Affiliate from a Multiemployer
Plan or the receipt by Borrower or any ERISA Affiliate of notification that a
Multiemployer Plan is in reorganization; (d) the filing with the PBGC of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon Borrower or any ERISA Affiliate.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Credit Facilities" means the credit facilities described in
Article II of this Agreement.
"Fixed Charge Coverage Ratio" means, as of any date of determination, the
ratio of the following (in each case for the period of four fiscal quarters of
Borrower most recently ended for which Borrower has delivered financial
statements pursuant to Section 9.1(a) or (b)): (a) Consolidated EBITDAR for such
period to (b) the sum of (i) Consolidated Interest Charges for such period plus
(ii) Consolidated Lease Payments for such period.
"FRB" means the Board of Governors of the Federal Reserve System and any
Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles consistently
applied. The definition of any accounting term used in this Agreement that is
not specifically defined shall be the GAAP definition therefor.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
FIVE YEAR CREDIT AGREEMENT Page 4
"Hazardous Substances" means (a) any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, or a
hazardous, toxic or radioactive substance (or designated by any similar term) by
or for purposes of any applicable Environmental Law; (b) asbestos and any
substance or compound containing asbestos; and (c) any other hazardous, toxic or
dangerous waste, substance or material, including but not limited to gasoline,
crude oil, fuel oil, diesel oil, and any other related petroleum products.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all indebtedness for borrowed money and all obligations
evidenced by notes, bonds, debentures or similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties and similar instruments, other than Non-Financial
Letters of Credit;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) capital leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indebtedness Rating" means the long-term unsecured senior, non-credit
enhanced rating of Borrower by Standard & Poor's Ratings Group or Xxxxx'x
Investor Service Inc. (in the case of a split rating, the higher rating will
apply, unless the split results in a difference of more than one rating, in
which case the rating one rating below the highest rating will apply).
"Independent Auditor" has the meaning specified in subsection 9.1(a).
"Interest Payment Date" means (a) as to any LIBOR Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a LIBOR Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any other
Loan, the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means as to each LIBOR Rate Loan, the period commencing
on the date such LIBOR Rate Loan is disbursed or (in the case of any LIBOR Rate
Loan) converted to or continued as a LIBOR Rate Loan and ending on the date one
week, or one, three, or six months thereafter, as selected by Borrower in its
Notice of Borrowing, provided that:
(a) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day unless,
in the case of a LIBOR Rate Loan, such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Business Day.
(b) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
"L/C Agreement" means the Continuing Reimbursement Agreement for Letters
of Credit dated January 7, 2003.
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"L/C Termination Date" means July 7, 2005, unless renewed, extended, or
modified.
"Law(s)" means collectively, all international, foreign, federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
"Lender" means U.S. Bank National Association.
"Lender's Authorized Representative" means any vice president or assistant
relationship manager in the Commercial Banking Department of Lender.
"LIBOR Rate" means the asking price per annum for U.S. Dollar denominated
deposits in the London, England interbank market as such price is presented to
Lender by Dow, Xxxxx & Company through its Dow Xxxxx Telerate, Inc. subsidiary
or a similar quote reporting service.
"LIBOR Rate Loan(s)" means any Revolving Loan to which a LIBOR Rate
applies.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority, or other security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, and any capital,
synthetic, off-balance sheet or tax retention lease having substantially the
same economic effect as any of the foregoing).
"Loan Documents" means this Agreement, the Notes, and all other documents
and instruments attached hereto, referred to herein or heretofore,
contemporaneously herewith or hereafter executed or delivered to Lender by any
Person in connection with the indebtedness of Borrower to Lender hereunder.
"Loan Party" means each party hereto other than Lender.
"Loans" means the Revolving Loans under Article III.
"Margin Stock" means "margin stock" as such term is defined in Regulation
T, U or X of the FRB.
"Markus-Stiftung Stock Agreement" means the agreement dated February 15,
1980, among Borrower, Xxxx Xxxxxxxx Stiftung (now known as Markus-Stiftung) and
Xxxx Xxxxxxxx, as amended by the First Amendment thereto dated as of April 11,
1984, the Second Amendment thereto dated as of September 25, 1989, and the Third
Amendment thereto dated as of December 5, 1994 and any successor agreement.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets, liabilities or
financial condition (financial or otherwise) of Borrower and its Consolidated
Subsidiaries taken as a whole; (b) a material impairment of the ability of
Borrower to perform under any Loan Document; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against Borrower
of any Loan Document.
"Material Subsidiary" means (a) each Subsidiary of the Borrower whose
assets equal or exceed 5% of the total assets of the Borrower and its
Subsidiaries on a consolidated basis as of the end of the most recent fiscal
year of the Borrower for which consolidating Subsidiary asset numbers are
available, and (b) each Subsidiary whose assets, when combined with the assets
of each other Subsidiary that has previously entered into any Contractual
Obligation that contains a provision described in Section 10.5, would exceed 15%
of the total assets of the Borrower and its Subsidiaries on a consolidated basis
as of the end of the most recent fiscal year of the Borrower for which
consolidating Subsidiary asset numbers are available.
"Maturity Date" means July 7, 2009.
"Maximum Letter of Credit Amount" means $50,000,000.
"Maximum Revolving Loan Amount" means $100,000,000.
"Multiemployer Plan" means any multiemployer plan as defined in Section
4001(a)(3) of ERISA, which is covered by Title IV of ERISA and to which Borrower
or any ERISA Affiliate makes or is obligated to make contributions, or during
the preceding five plan years, has made or been obligated to make contributions.
"Multi-Year Credit Agreement" means the agreement of that title dated
March 22, 2000.
FIVE YEAR CREDIT AGREEMENT Page 6
"New Five Year Credit Agreement" means the Five Year Credit Agreement
dated June 17, 2004, among Borrower, Bank of America, N.A., as Administrative
Agent, and other named lenders.
"New Five Year Credit Agreement Committed Loan" means an extension of
credit under Section 2.01 of the New Five Year Credit Agreement.
"New 364-Day Credit Agreement" means the 364-Day Credit Agreement dated
June 17, 2004, among Borrower, Bank of America, N.A., as Administrative Agent,
and other named lenders.
"New 364-Day Credit Agreement Committed Loan" means an extension of credit
under Article II of the New 364-Day Credit Agreement.
"Non-Financial Letters of Credit" means letters of credit securing trade
payables or non-financial performance obligations (including self-insurance).
"Non-Recourse Acquired Indebtedness" means Acquired Indebtedness of any
Person that is not Guaranteed by Borrower or any of its Subsidiaries (other than
Subsidiaries of Borrower that were also acquired at the time of, and as part of,
the acquisition of such Person (each, with respect to any particular
acquisition, an "Acquired Person")), but only so long as no such Acquired Person
is subject to any Contractual Obligation with respect to the creation or
incurrence of indebtedness that contains any provision that (a) limits the
ability of Borrower or any Subsidiary to create, incur, assume or suffer to
exist Liens on property owned by such Person, (b) in the event that such
Acquired Indebtedness is in a maximum principal amount in excess of the
Threshold Amount, requires the grant of a Lien to secure an obligation of such
Person if a Lien is granted to secure another obligation of such Person, or (c)
would, if it were entered into by Borrower or a Subsidiary during the term of
this Agreement, violate the provisions of Section 10.5.
"Note(s)" means the Revolving Note and the Continuing Reimbursement
Agreement for Letters of Credit.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
D.
"Obligation" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document, owing by Borrower to
Lender, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising.
"One Time Charges" means unusual material charges or credits against
earnings which Borrower separately discloses in the discussion of the "Results
of Operations" (including but not limited to merger related charges,
restructuring charges, gains or losses from the disposition of assets and
accounting changes).
"Outstanding Amount of Lender's Revolving Loans" means the aggregate
outstanding principal amount under this Agreement, thereof on any date after
giving effect to any borrowings and prepayments or repayments of Revolving
Loans.
"Outstanding Amount of Committed Loans" means, with respect to New Five
Year Credit Agreement Committed Loans and New 364-Day Credit Agreement Committed
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of either or both
of them, as the case may be, occurring on such date.
"Overnight Borrowing" means a short-term loan that must be repaid by
Borrower on the Business Day following the Business Day in which it is borrowed.
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Person" means an individual or entity, including without limitation a
corporation, general or limited partnership, limited liability company, trust,
unincorporated association, government or government agency.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by Borrower or, with respect to any such plan
that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Prime Rate" means Lender's rate of interest publicly announced from time
to time as its "Prime Rate."
FIVE YEAR CREDIT AGREEMENT Page 7
"Pro Rata Loan Balance" means the percentage ratio between: (a) the
percentage calculated by dividing the Aggregate Commitment by the sum of the
Aggregate Commitment and the Aggregate Commitments under, and as defined in the
New 364-Day Credit Agreement and the New Five Year Credit Agreement; and (b) the
percentage calculated by dividing the sum of the Aggregate Commitments under,
and as defined in the New 364-Day Credit Agreement and the New Five Year Credit
Agreement by the sum of the Aggregate Commitment and the Aggregate Commitments
under, and as defined in the New 364-Day Credit Agreement and the New Five Year
Credit Agreement. By way of example only, such percentages would be based on the
following calculations: (a) the Aggregate Commitment ($100 million) divided by
the sum of the Aggregate Commitment and the Aggregate Commitments under, and as
defined in the New 364-Day Credit Agreement and the New Five Year Credit
Agreement ($100 million + $1.3 billion = $1.4 billion) = 7.14285%; (b) the sum
of the Aggregate Commitments under, and as defined in the New 364-Day Credit
Agreement and the New Five Year Credit Agreement ($1.3 billion) divided by the
sum of the Aggregate Commitment and the Aggregate Commitments under, and as
defined in the New 364-Day Credit Agreement and the New Five Year Credit
Agreement ($100 million + $1.3 billion = $1.4 billion) = 92.85715%. The Pro Rata
Loan Balance based on such calculations would be 7.14285% to 92.85715%.
"Responsible Officer" means, as to any Person, the chief executive
officer, the chief financial officer, or the treasurer or the president of such
Person, or any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants, the
chief financial officer or the treasurer of such Person, or any other officer
having substantially the same authority and responsibility.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
equity interest of Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or other equity interest or of any option,
warrant or other right to acquire any such capital stock or other equity
interest.
"Revolving Advance" means a loan advance under Section 3.1.
"Revolving Loan Termination Date" means the earlier of July 7, 2009, and
the date Lender demands payment in full of the then outstanding balance of the
Revolving Note.
"Revolving Loans" means loans pursuant to Article III.
"Revolving Note" means the promissory note referred to in Section 3.3
hereafter.
"SEC" means the Securities and Exchange Commission.
"Senior Notes" means the Indebtedness in the form of notes issued on May
7, 2004 and June 2, 2004 by Borrower in the initial principal amount of
$1,150,000,000 pursuant to that certain Indenture dated as of May 1, 1992 by and
between Borrower and U.S. Bank Trust National Association, as amended and
supplemented by that certain Supplemental Indenture No. 1 thereto dated as of
May 7, 2004.
"Subsidiary" of a Person means any corporation or other business entity of
which more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of Borrower.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contracts" means any agreement, whether or not in writing, relating
to any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other similar transaction (including any option
to enter into any of the foregoing) or any combination of the foregoing, and
unless the context otherwise clearly requires, any master agreement relating to
or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do
FIVE YEAR CREDIT AGREEMENT Page 8
not appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Threshold Amount" means $50,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of Lender's
Revolving Loans.
"Unfunded Pension Liability" means the excess of the present value of a
Pension Plan's vested and unvested accrued benefits over the fair market value
of that Pension Plan's assets, with such liabilities and assets determined as of
the most recent valuation date for such Pension Plan for which a valuation is
available in accordance with the assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code.
"USBTS-Hong Kong" means U.S. Bank Trade Services - Hong Kong.
1.2 COVENANT ACQUISITION ADJUSTMENTS. Except as otherwise provided
herein, with respect to the calculation of the financial covenant pursuant to
Section 10.7(b) that includes a period (or a portion of a period) prior to the
date of the consummation of any acquisition of any Person or substantially all
the assets of any Person, references to "the Borrower and its Subsidiaries"
shall include each acquired Person, and all such acquired assets and liabilities
from any Person, as if the acquisition had been consummated on the first day of
any such period of measurement.
ARTICLE II
EXISTING CREDIT FACILITIES
2.1 DOCUMENTS. Borrower and Lender are parties to the Continuing
Reimbursement Agreement for Letters of Credit.
2.2 OTHER FACILITIES. The rights and obligations of the parties pursuant
to the Multi-Year Credit Agreement dated March 22, 2000, and the Credit
Agreement dated as of February 13, 2004, between Borrower and Lender are hereby
terminated.
ARTICLE III
REVOLVING LOANS FIVE YEAR
3.1 MAXIMUM AMOUNT. Subject to the terms and conditions of this
Agreement, Lender agrees to make loans to Borrower from time to time on a
revolving credit basis (each a "Revolving Advance", collectively, "Revolving
Loans"), provided that the aggregate principal amount of outstanding Revolving
Loans shall at no time exceed the Maximum Revolving Loan Amount or the Pro Rata
Loan Balance, although Borrower shall have ten (10) days to maintain compliance
with the Pro Rata Loan Balance. The availability of Revolving Advances shall
terminate on the Revolving Loan Termination Date.
3.2 USE OF PROCEEDS. Borrower shall use the proceeds of the Revolving
Loans for commercial paper back-up liquidity, working capital, capital
expenditures and other lawful purposes.
3.3 REVOLVING NOTE. The Revolving Loans shall be evidenced by a
promissory note executed by Borrower in the principal amount of $100,000,000
substantially in the form attached as Exhibit E ("Revolving Note"). The
Revolving Loans shall be subject to all terms and conditions of the Revolving
Note and of this Agreement.
3.4 INTEREST. Interest on the unpaid principal balance of the Revolving
Note shall be due and payable at the times and at the rates set forth in the
Revolving Note.
3.5 PRINCIPAL PAYMENTS. The principal balance of the Revolving Note
shall be due and payable on the date indicated on the Revolving Note or if none,
the Revolving Loan Termination Date.
3.6 ADDITIONAL PAYMENTS. In addition to the payments otherwise required
on the Revolving Note, if at any time the outstanding principal balance of the
Revolving Note exceeds the Maximum Revolving Loan Amount or the Pro Rata Balance
for more than ten (10) days, Borrower shall pay to Lender on demand an amount
equal to the amount by which such principal balance exceeds the Maximum
Revolving Loan Amount or the Pro Rata Balance.
3.7 REQUESTS FOR REVOLVING ADVANCES. Whenever Borrower wishes to request
a Revolving Advance, Borrower shall give Lender notice thereof in accordance
with the Notice of Borrowing.
3.8 OVERNIGHT BORROWING. Of the Revolving Loans, Borrower may request a
Revolving Advance of up to $100,000,000 (so long as the amount requested is
available to be borrowed at the time of the request) for the purpose of an
Overnight Borrowing.
FIVE YEAR CREDIT AGREEMENT Page 9
3.8.1 INTEREST RATE FOR OVERNIGHT BORROWING. The applicable interest
rate for Overnight Borrowing shall be as set forth in the Revolving Note.
3.8.2 REQUESTS FOR OVERNIGHT BORROWING. Borrower must request an
Overnight Borrowing between 9 a.m. and 3 p.m., Mountain Time, on a Business Day,
by either telephonic or facsimile communication to Lender's Authorized
Representative, originated or signed by Borrower's Authorized Representative.
ARTICLE IV
LOAN FEES
Borrower shall pay to Lender the following fees:
4.1 FACILITY FEE. Borrower shall pay to Lender a facility fee (the
"Facility Fee") equal to the Applicable Rate with respect to the Facility Fee
times the actual daily amount of the Aggregate Commitment (or, if the Aggregate
Commitment has terminated, on the Outstanding Amount of All Revolving Loans),
regardless of usage. The Facility Fee shall accrue at all times during the
Availability Period (and thereafter so long as any Revolving Loans remain
outstanding), including at any time during which one or more of the conditions
in Article VII is not met, and shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commending
with the first such date to occur after the Closing Date, and on the Maturity
Date (and, if applicable, thereafter on demand). The Facility Fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate with respect to the Facility Fee during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate with respect to
the Facility Fee separately for each period during such quarter that such
Applicable Rate was in effect.
4.2 UTILIZATION FEE. Borrower shall pay to Lender a utilization fee (the
"Utilization Fee") of 0.25% per annum times the Total Outstandings on each day
that the (i) the Total Outstandings under this Agreement plus (ii) the "Total
Outstandings" under, and as defined in, the New Five Year Credit Agreement under
this Agreement plus (iii) the "Total Outstandings" under, and as defined in, the
New 364-Day Credit Agreement exceed 50% of the actual daily amount of (x) the
Aggregate Commitments under this Agreement plus (y) the "Aggregate Commitments"
under, and as defined in, the New Five Year Credit Agreement under this
Agreement plus (z) the "Aggregate Commitments" under, and as defined in the
364-Day Credit Agreement then in effect (or, in each case, if terminated, in
effect immediately prior to such termination). The Utilization Fee shall be due
and payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
Closing Date, and on the Maturity Date. The Utilization Fee shall be calculated
quarterly in arrears. The Utilization Fee shall accrue at all times, including
at any time during which one or more of the conditions in Article VII is not
met.
4.3 Up-front fee of $115,555, payable on the Closing Date.
ARTICLE V
LETTERS OF CREDIT
5.1 MAXIMUM AMOUNT OF CREDITS. Subject to the terms and conditions of
this Agreement, Lender in its sole discretion and at its sole option may issue
one or more standby and/or commercial Letters of Credit for the account of
Borrower (each a "Letter of Credit"), provided that the L/C Outstandings shall
not exceed at any one time the Maximum Letter of Credit Amount.
5.2 USE OF LETTERS OF CREDIT. Borrower shall use the letters of credit
to support performance bonds, to process import transactions, or for other
lawful purposes.
5.3 L/C AGREEMENT. Borrower has executed or will execute
contemporaneously with this Agreement the L/C Agreement.
5.4 L/C APPLICATIONS. Whenever Borrower wishes to request the issuance
of a Letter of Credit, Borrower shall execute and deliver to Lender an
application therefor in Lender's standard form, appropriately completed with all
required information (an "L/C Application"). Each Letter of Credit shall be
subject to all terms and conditions of this Agreement, the L/C Agreement, and
the applicable L/C Application. In the event of any express conflict between the
terms of this Agreement and of the L/C Agreement and the L/C Application, the
terms of this Agreement shall control.
5.5 EXPIRY DATE. No Letter of Credit shall be issued on or after the L/C
Termination Date. Each Letter of Credit shall have an expiration date no later
than 365 days after the L/C Termination Date. Drafts drawn under a Letter of
Credit may be sight drafts or time drafts; provided, however, that no draft
shall have a maturity date later than 365 days after the L/C Termination Date.
FIVE YEAR CREDIT AGREEMENT Page 10
5.6 REIMBURSEMENT. Borrower hereby agrees to reimburse Lender an amount
equal to the face amount of each draft drawn under each Letter of Credit in
accordance with the terms of such Letter of Credit and the applicable L/C
Agreement. Notwithstanding the terms of any L/C Agreement, in the event Borrower
fails to pay Lender in accordance with the terms of any L/C Agreement, Borrower
agrees to pay to Lender on demand interest on all amounts due under such Letter
of Credit at the Default Rate.
5.7 CERTAIN FEES. In addition to any other fees set forth herein,
Borrower agrees to pay to Lender on demand:
5.7.1 With respect to each Letter of Credit and each draft drawn
thereunder, Lender's customary issuance fees, processing fees, negotiation
commissions and acceptance fees, as applicable.
5.7.2 With respect to each commercial Letter of Credit issued
through USBTS-Hong Kong, and each draft drawn thereunder, Lender's customary
issuance fees, negotiation commissions and acceptance fees, as applicable, but
no processing fee.
5.7.3 With respect to each Commercial Letter of Credit not issued
through USBTS-Hong Kong, and each draft drawn thereunder, Lender's customary
issuance fees, negotiation commissions and acceptance fees, as applicable, and a
processing fee of 12.5 Basis Points or $35, whichever is more, payable at the
time of drawing by the beneficiary.
5.7.4 With respect to each standby Letter of Credit, an issuing fee
equal to the Applicable Rate calculated from and including the date of issuance
(or date of renewal or extension if any) thereof to the expiry date thereof on
the basis of actual days divided by 360.
ARTICLE VI
ADDITIONAL TERMS APPLICABLE TO CERTAIN CREDIT FACILITIES
6.1 REPRESENTATION AND WARRANTY OF CREDIT AVAILABILITY. Each request by
Borrower for A Revolving Advance or Letter of Credit shall be deemed to be its
representation and warranty that (a) such Revolving Advance or issuing such
Letter of Credit may be made without exceeding the applicable maximum amount
determined in accordance with the provisions of this Agreement, (b) no Default
has occurred, or will occur as a result of making such Revolving Advance or
issuing such Letter of Credit, and (c) all representations and warranties set
forth in this Agreement are true, accurate and complete as of the date of such
request (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct as of
such earlier date).
ARTICLE VII
CONDITIONS PRECEDENT
7.1 CONDITIONS OF INITIAL LOANS. The obligations of Lender to make its
initial Revolving Advance is subject to the condition that Lender shall have
received on or before the Closing Date all of the following, in form and
substance satisfactory to Lender:
(a) CREDIT AGREEMENT AND NOTES. This Agreement and the Notes
executed by Borrower;
(b) RESOLUTIONS; INCUMBENCY.
1. Copies of the resolutions of the board of directors of
Borrower authorizing the transactions contemplated hereby, certified as of the
Closing Date by the Secretary or an Assistant Secretary of Borrower; and
2. A Certificate of the Secretary or Assistant Secretary of
Borrower, dated the Closing Date, certifying the names, titles and true
signatures of the officers of Borrower (with the exception of Xxxxxxx Xxxxxxxx
whose true signature will be certified by no later than July 31, 2004)
authorized to execute, deliver and perform, as applicable, this Agreement, and
all other Loan Documents to be delivered by it hereunder;
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the following
documents:
1. the articles or certificate of incorporation and the
bylaws of Borrower as in effect on the Closing Date, certified by the Secretary
or Assistant Secretary of Borrower as of the Closing Date; and
FIVE YEAR CREDIT AGREEMENT Page 11
2. good standing certificates for Borrower from the
Secretary of State (or similar applicable governmental authority) of its state
of incorporation and the state of its principal offices;
(d) LEGAL OPINIONS.
1. a favorable opinion of the Executive Vice President and
General Counsel to Borrower, dated as of the Closing Date and addressed to
Lender, as to the matters set forth in Exhibit F; and
2. a copy of a favorable opinion from Xxxxx Day, counsel to
Borrower, not directed to Lender but to the lenders providing the New Five Year
Credit Agreement and the New 364-Day Credit Agreement.
(e) PAYMENT OF FEES. Evidence of payment by Borrower of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date, together with Borrower's promise under this subsection (e)
to pay Attorney Costs incurred or to be incurred by it through the closing
proceedings including any such costs, fees and expenses arising under or
referenced in Section 13.5;
(f) CERTIFICATE. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
1. the representations and warranties contained in Article
VIII are true and correct on and as of such date, as though made on and as of
such date (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct as of
such earlier date; and except that the representation and warranty shall be
deemed instead to refer to the last day of the most recent quarter and year for
which financial statements have then been delivered, and to the most recent Form
10-K or 10-Q filed by Borrower with the SEC, in respect of the representations
and warranties made in Article VIII Sections 8.5 and 8.10);
2. no Default or Event of Default exists or would result
from the initial Borrowing; and
3. there has occurred since the date of the most recent
Form 10-K or other public disclosure documents filed by Borrower with the SEC
prior to the Closing Date (to the extent any such event or circumstance is
disclosed in such document), no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse Effect;
(g) DOCUMENTS AND ACTIONS RELATING TO THE NEW FIVE YEAR CREDIT
AGREEMENT AND NEW 364-DAY CREDIT AGREEMENT. A certificate of a Responsible
Officer of Borrower certifying that there are no defaults in payment and
performance of the New Five Year Credit Agreement and New 364-Day Credit
Agreement in accordance with the terms and conditions thereof; and
(h) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as Lender may reasonably request.
(i) INDEBTEDNESS RATINGS. Evidence of the current Indebtedness
Ratings, which shall not be less than BBB- from S&P and Baa3 from Xxxxx'x.
(j) CLOSINGS AND TERMINATIONS. Evidence that Borrower has closed
its New Five Year Credit Agreement and New 364-Day Credit Agreement and
terminated the Multi-Year Credit Agreement and its Credit Agreement with Lender
dated February 13, 2004.
7.2 CONDITIONS TO ALL BORROWINGS. The obligation of Lender to make any
Revolving Loan or issue any Letter of Credit is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date:
(a) NOTICE OF BORROWING. As to any Loan, Lender shall have
received a Notice of Borrowing;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in Article VIII shall be true and correct on and
as of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date; and except that this subsection (b) shall be deemed
instead to refer to the last day of the most recent quarter and year for which
financial statements have then been delivered, and to the most recent Form 10-K
or 10-Q filed by Borrower with the SEC, in respect of the representations and
warranties made in Section VIII Sections 8.5 and 8.10);
(c) NO MATERIAL ADVERSE EFFECT. There has occurred since the date
of the most recent Form 10-K or other public disclosure document filed by
Borrower with the SEC prior to the Closing Date (to the extent any such event or
circumstance is disclosed in such document), no event or circumstance that has
resulted or could reasonably be expected to result in a Material Adverse Effect;
and
FIVE YEAR CREDIT AGREEMENT Page 12
(d) NO EXISTING DEFAULT. No default or Event of Default shall
exist or shall result from such Borrowing.
Each Notice of Borrowing submitted by Borrower hereunder shall constitute
a representation and warranty by Borrower hereunder, as of the date of each such
notice or request and as of each Borrowing Date, that the conditions in this
Section 7.2 are satisfied.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants:
8.1 CORPORATE EXISTENCE AND POWER. It is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
8.2 SUBSIDIARIES. Each of Borrower's corporate Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
8.3 CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION. The
execution, delivery and performance by Borrower of the Loan Documents are within
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
Governmental Authority and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of Borrower or of any agreement, judgment, injunction, order, decree
or other instrument binding upon Borrower or result in the creation or
imposition of any Lien on any asset of Borrower or any of its Subsidiaries.
8.4 BINDING EFFECT. This Agreement and each other Loan Document to which
Borrower is a party constitutes a valid and binding agreement of Borrower, and
each Note and Loan Document, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its respective terms.
8.5 LITIGATION. Except as disclosed in Borrower's most recent Form 10-K
or other public disclosure, there is no action, suit or proceeding pending
against, or to the knowledge of Borrower threatened against or affecting,
Borrower or any of its Subsidiaries before any court or arbitrator or any
Governmental Authority in which there is a reasonable possibility of an adverse
decision which could have a Material Adverse Effect.
8.6 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto or the remedial
amendment period for filing such an application with the IRS for such a letter
has expired, and, to the knowledge of Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. Borrower and each ERISA
Affiliate have made all required material contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the knowledge of Borrower,
threatened claims (other than routine claims for benefits), actions or lawsuits,
or any investigations or audits by any Governmental Authority, with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect.
There has been no nonexempt prohibited transaction under Section 406 of ERISA or
4975 of the Code or violation of the fiduciary responsibility rules under ERISA
with respect to any Plan that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No material ERISA Event has occurred or is reasonably
expected to occur; (ii) the Unfunded Pension Liabilities of all Pension Plans
does not exceed $400,000,000 on an aggregate basis; and (iii) neither Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
8.7 USE OF PROCEEDS. The proceeds of the Loans are to be used solely for
the purposes set forth in and permitted by Section 3.2 and Section 5.2.
8.8 TITLE TO PROPERTIES; LIENS. Borrower and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. The property of Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted under Section
10.1.
FIVE YEAR CREDIT AGREEMENT Page 13
8.9 TAXES. Borrower and its Subsidiaries have filed all United States
federal income tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by Borrower or any Subsidiary, other than
any such taxes being contested in good faith and for which appropriate reserves
have been established on the books and records of Borrower in accordance with
GAAP. The charges, accruals and reserves on the books of Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of Borrower, adequate.
8.10 FINANCIAL INFORMATION. The most recent consolidated balance sheet of
Borrower and its Consolidated Subsidiaries and the related consolidated
statements of earnings, cash flows and stockholders' equity for the fiscal year
then ended, reported on by Deloitte & Touche and set forth or as incorporated by
reference in Borrower's most recent Form 10-K, a copy of which has been
delivered to Lender, fairly represent, in conformity with GAAP, the consolidated
financial position of Borrower and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such fiscal
year.
8.11 ENVIRONMENTAL MATTERS. In the ordinary course of its business,
Borrower considers the effect of Environmental Laws on the business, operations
and properties of Borrower and its Subsidiaries as such business, operations and
properties exist at the time. On this basis, Borrower has reasonably concluded
that Environmental Laws at the time in effect are unlikely to have a Material
Adverse Effect.
8.12 REGULATED ENTITIES. Borrower is not an "Investment Company" within
the meaning of the Investment Company Act of 1940. Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
8.13 INSURANCE. The properties of Borrower and its Consolidated
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of Borrower, in such amounts, with such deductibles
(and with such risk retention) and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where Borrower or such Subsidiary operates.
8.14 ACCESS LAWS. Borrower and its Consolidated Subsidiaries are to the
best of Borrower's knowledge and belief, not in violation of any Access Laws
applicable to their operations to the extent that there is a reasonable
possibility of an adverse decision or decisions which separately or together
could have a Material Adverse Effect.
8.15 DISCLOSURE. All information heretofore furnished by Borrower to
Lender for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by Borrower
to Lender will be, true and accurate in all material respects on the date as of
which such information is stated or certified.
ARTICLE IX
AFFIRMATIVE COVENANTS
So long as Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, Borrower shall, and
shall (except in the case of the covenants set forth in Sections 9.1, 9.2, 9.3,
and 9.11) cause each Subsidiary to:
9.1 FINANCIAL STATEMENTS. Deliver to Lender, in form and detail
satisfactory to Lender:
(a) as soon as available, but in any event within 100 days after
the end of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit; and
(b) as soon as available, but in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of
Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of Borrower's fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of Borrower as fairly representing the financial condition, results of
operations, shareholders' equity and cash flows of Borrower and its Subsidiaries
in accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes.
FIVE YEAR CREDIT AGREEMENT Page 14
9.2 CERTIFICATES, OTHER INFORMATION. Deliver to Lender, in form and
detail satisfactory to Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 9.1(a), a certifiable of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default under
the financial covenants set forth herein or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 9.1(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of Borrower, provided that the Compliance
Certificate is delivered with the annual financial statements referred to in
Section 9.1(a) shall in all cases include a representation and warranty by
Borrower that since the date of the Audited Financial Statements, there has been
no event or circumstance (except events or circumstances disclosed in the Form
10-K filed by Borrower with the SEC for the fiscal year of Borrower ended
January 29, 2004), either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect with respect to
Borrower and its Subsidiaries.
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Lender
pursuant hereto; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of Borrower or any Subsidiary, or compliance with
the terms of the Loan Documents, as Lender may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 9.1(a) or (b) or
Section 9.2(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
Borrower posts such documents, or provides a link thereto on Borrower's website
on the Internet or (ii) on which such documents are posted on Borrower's behalf
on an Internet or intranet website, if any, to which Lender has access; provided
that: (i) Borrower shall deliver paper copies of such documents to Lender if
Lender requests Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by Lender, and (ii) Borrower shall notify
(which may be by facsimile or electronic mail) Lender of the posting of any such
documents and provide to Lender by electronic mail electronic versions (i.e.,
soft copies) of such documents. Notwithstanding anything contained herein, in
every instance Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 9.2(b) to Lender.
9.3 NOTICES. Promptly notify Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or is reasonably expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of Borrower or any Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension between
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any material ERISA Event.
(d) of any material change in accounting policies or financial
reporting practices by Borrower or any Subsidiary; and
(e) of any announcement by Xxxxx'x or S&P of any change in a
Indebtedness Rating.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of Borrower setting forth details of the occurrence
referred to therein and stating what action Borrower has taken and proposes to
take with respect thereto. Each notice pursuant to Section 9.3(a) shall describe
with particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
9.4 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all material
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful
and material claims which, if unpaid, would by law become a Lien upon its
property; and (c) all material Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
FIVE YEAR CREDIT AGREEMENT Page 15
9.5 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 10.3 or 10.8; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
9.6 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical of the industry in the
operation and maintenance of its facilities.
9.7 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of Borrower, insurance with respect
to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar circumstances
by such other Persons and Borrower will promptly furnish to Lender such
information as to insurance carried as may be reasonably requested in writing by
Lender.
9.8 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property (including Environmental Laws
and ERISA), except in such instances in which (a) such requirements of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
9.9 BOOKS AND RECORDS. Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of Borrower or such Subsidiary, as the case may be.
9.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of Lender (at their expense) to visit and inspect any of its
properties, to examine its corporate, financial and operating records (except as
they relate to Borrower's trade secrets or other proprietary information of
Borrower other than any information required to be delivered to Lender by
Borrower under Section 9.1), and make copies thereof of abstracts therefrom, and
to discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the expense of Borrower and at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to Borrower; provided, however, that
when an Event of Default exists Lender (or any of its respective representatives
or independent contractors) may do any of the foregoing at the expense of
Borrower at any time during normal business hours and without advance notice.
9.11 USE OF PROCEEDS. Use the proceeds of the Revolving Loans (i) for
commercial paper back-up liquidity, and (ii) for working capital, capital
expenditures and general corporate purposes not in contravention of any Law or
of any Loan Document, and the proceeds from Letters of Credit to support
performance bonds, process import transactions, or for other lawful purposes.
9.12 FURTHER ASSURANCES. Promptly upon request by Lender, Borrower shall
do, execute, acknowledge and deliver any and all such further acts,
certificates, assurances and other instruments Lender, may reasonably require
from time to time in order to carry out more effectively the purposes of this
Agreement or any other Loan Document.
9.13 PRO RATA LOAN BALANCE. Maintain the Pro Rata Loan Balance. If
Borrower draws a Revolving Advance from Lender, Borrower will within ten (10)
Business Days thereafter draw a New Five Year Credit Agreement Committed Loan or
a New 364-Day Credit Agreement Committed Loan in an amount sufficient to
maintain the Pro Rata Loan Balance; provided that such amount will be in a
principal amount of not less than $5,000,000 or a whole multiple of $1,000,000
in excess thereof (consistent with Section 2.02 of the New Five Year Credit
Agreement and the New 364-Day Credit Agreement). If Borrower draws a New Five
Year Credit Agreement Committed Loan or a New 364-Day Credit Agreement Committed
Loan, Borrower will within ten (10) Business Days thereafter draw a Revolving
Advance from Lender in an amount sufficient to maintain the Pro Rata Loan
Balance. Borrower will notify Lender whenever it requests a New Five Year Credit
Agreement Committed Loan or a New 364-Day Credit Agreement Committed Loan which
notice will include the amount of the request.
ARTICLE X
NEGATIVE COVENANTS
So long as Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless Lender waives
compliance in writing:
10.1 LIMITATION ON LIENS. Neither Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
FIVE YEAR CREDIT AGREEMENT Page 16
(a) Liens existing on the date of this Agreement securing the
Indebtedness outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $900,000,000;
(b) any Lien existing on any specific tangible asset or assets of
any Person at the time such Person becomes a Consolidated Subsidiary and not
created in contemplation of such event, subject to subsection (e);
(c) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
such asset,(including capital leases) provided that (i) in the case of land
acquired for the purpose of constructing new business or operating facilities
thereon, (A) such Lien attaches to such land within 24 months after the
acquisition thereof and (B) construction of such new business or operating
facilities thereon is substantially complete within 24 months after the
acquisition of such land and (ii) in the case of any asset other than an asset
of the type described in the preceding clause (i), such Lien attaches to such
asset concurrently with or within 180 days after the acquisition thereof;
(d) any Lien on any specific tangible asset or assets of any
Person existing at the time such Person is merged or consolidated with or into
Borrower or a Consolidated Subsidiary and not created in contemplation of such
event, subject to subsection (e);
(e) any Lien existing on any specific tangible asset or assets
prior to the acquisition thereof by Borrower or a Consolidated Subsidiary and
not created in contemplation of such acquisition; provided that in the case of
any Lien permitted under this subsection (e) or under subsections (b) and (d),
any such Lien does not by its terms cover any such tangible assets after the
time Borrower directly or indirectly acquires such assets which were not covered
immediately prior thereto, and any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the time of
acquisition of such assets;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which (i)
do not secure Indebtedness and (ii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business;
(h) Liens arising from Borrower's or a Subsidiary's pledging of
equipment, not otherwise permitted by the foregoing clauses of this Section,
securing Indebtedness in an aggregate principal amount at any time outstanding
not to exceed $1,000,000,000; and
(i) Liens on real property; provided that the aggregate value of
real property owned by Borrower (not including for purposes of this proviso any
real property acquired or held by Borrower subject to the interest of a lessor
under a capital lease relating to such real property), as determined on a lower
of cost or Fair Market Value basis (as defined below), exceeds the aggregate
principal amount of Indebtedness secured by Liens on such real property in an
amount not less than $1,000,000,000.
For purposes of Section 10.1 ("Fair Market Value") means with respect to
any real property of Borrower or any Subsidiary at any date the open market cash
purchase price that an informed and willing purchaser would pay for such real
property in an arm's-length transaction to a willing and informed owner under no
compulsion to sell, all as determined (i) if no Default has occurred and is
continuing, at the option of Lender either (A) in good faith by the Board of
Directors of Borrower or (B) by an appraisal conducted by an independent
appraiser satisfactory to the Agent and Borrower, the cost of such appraisal to
be shared equally by Borrower and Lender, and (ii) if a Default has occurred and
is continuing, by an appraisal conducted by an independent appraiser
satisfactory to Lender and Borrower, the cost of such appraisal to be borne
solely by Borrower.
10.2 INDEBTEDNESS. Neither Borrower nor any Consolidated Subsidiary will
create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) obligations (contingent or otherwise) existing or arising
under any Swap Contract, provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose
of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a "market view;" and (ii) such Swap Contract
does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party;
(c) endorsements for collection or deposit in the ordinary course
of business;
(d) Indebtedness existing on the Closing Date in an amount not to
exceed $2,000,000,000.
FIVE YEAR CREDIT AGREEMENT Page 17
(e) Indebtedness secured by Liens permitted by Sections 10.1(b),
(c), (d), (e), (h) or (i);
(f) (i) Acquired Indebtedness (other than Non-Recourse Acquired
Indebtedness) not exceeding $500,000,000 in aggregate principal amount at any
time outstanding and (ii) Non-Recourse Acquired Indebtedness;
(g) capital leases entered into by any Subsidiary after the
Closing Date to finance the acquisition of equipment or real property;
(h) Indebtedness of wholly-owned Subsidiaries of Borrower to
Borrower or to other wholly-owned Subsidiaries of Borrower; and
(i) additional Indebtedness incurred after the Closing Date not
exceeding $500,000,000 in aggregate principal amount at any time outstanding.
10.3 FUNDAMENTAL CHANGES. Either (a) Dispose of (whether in one
transaction or in a series of transactions) all or any substantial part of the
assets (whether now owned or hereafter acquired) of Borrower and its
Subsidiaries considered as a whole, to or in favor of any Persons, or (b) merge,
dissolve, liquidate, consolidate with or into another Person, except that, so
long as no Default exists or would result therefrom, (i) any Subsidiary may
merge with (A) Borrower, provided that Borrower shall be the continuing or
surviving Persons, or (B) any one or more Subsidiaries, (ii) Borrower may merge
with another Person if Borrower is the Person surviving such merger and (iii)
any Subsidiary may merge, dissolve, liquidate, consolidate with or into another
Person if any Disposition of such Subsidiary would not result in a violation of
clause (a) above.
10.4 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
10.5 BURDENSOME AGREEMENTS Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that limits the ability of any
Material Subsidiary (a) to Guarantee the Indebtedness of Borrower, or (b) to
make Restricted Payments to Borrower or to otherwise transfer property to
Borrower, provided that any requirement that a non-wholly-owned Subsidiary make
Restricted Payments to all owners of its equity interests, including owners
other than Borrower or one of its Subsidiaries, in accordance with their
respective equity interests shall not constitute a limitation prohibited by this
subsection (b).
10.6 USE OF PROCEEDS. Use the proceeds of any Loan, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
10.7 FINANCIAL COVENANTS.
(a) FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of Borrower to be less than the amount
set forth opposite such fiscal quarter in the table below:
FISCAL QUARTER ENDING CLOSEST TO: FIXED CHARGE COVERAGE RATIO NOT TO BE LESS THAN:
-----------------------------------------------------------------------------------------------
July 31, 2004
October 31, 2004 2.50 to 1.00
January 31, 2005 and
April 30, 2005
-----------------------------------------------------------------------------------------------
July 31, 2005
October 31, 2005 2.60 to 1.00
January 31, 2006 and
April 30, 2006
-----------------------------------------------------------------------------------------------
July 31, 2006, and
Each fiscal quarter thereafter 2.70 to 1.00
(b) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage
Ratio at any time to be greater than the amount set forth opposite the
applicable period in the table below:
FIVE YEAR CREDIT AGREEMENT Page 18
PERIOD: CONSOLIDATED LEVERAGE RATIO NOT TO EXCEED:
------------------------------------------------------------------------------------------------------
Closing Date through the last day of the fiscal
quarter ending closest to April 30, 2006 4.50 to 1.00
------------------------------------------------------------------------------------------------------
First day of the fiscal quarter ending closest to
July 31, 2006 through the last day of the fiscal 4.25 to 1.00
quarter ending closest to April 30, 2007
------------------------------------------------------------------------------------------------------
First day of the fiscal quarter ending closest to
July 31, 2007 and at all times thereafter 4.00 to 1.00
10.8 REAL PROPERTY DISPOSITIONS. Make any Real Property Disposition or
enter into any agreement to make any Real Property Disposition, except:
(a) Real Property Dispositions required by a Governmental
Authority in connection with an acquisition by Borrower or one or more of its
Subsidiaries of (i) a controlling equity or other ownership interest in another
Person (including the purchase of an option, warrant or convertible or similar
type security to acquire such a controlling interest at the time it becomes
exercisable by the holder thereof), whether by purchase of such equity or other
ownership interest or upon exercise of an option or warrant for, or conversion
of securities into, such equity or other ownership interest, or (ii) assets of
another Person which constitute all or substantially all of the assets of such
Person or of a division or line or lines of business conducted by such Person;
(b) Real Property Dispositions to the extent that (i) the real
property Disposed is exchanged for credit against the purchase price of
replacement real property that is used or useful, or expected to be useful, in
the business of Borrower or its Subsidiaries on the date hereof or any business
substantially related or incidental thereto; or (ii) the proceeds of such Real
Property Disposition are thereafter applied either (A) to the purchase and/or
construction price of replacement real property that is used or useful, or
expected to be useful, in the business of Borrower and its Subsidiaries on the
date hereof or any business substantially related or incidental thereto, or (B)
to the permanent repayment of outstanding Indebtedness of Borrower or any of its
Subsidiaries, provided that prior to the actual use of proceeds in the manner
described in Section 10.8(b)(ii) (unless such use is substantially concurrent
with the Real Property Disposition at issue), any Real Property Disposition must
be otherwise permitted pursuant to another subsection of this Section 10.8 until
the time such use of proceeds makes such Real Property Disposition permissible
under this Section 10.8(b);
(c) Real Property Dispositions by any Subsidiary to Borrower or to
another Subsidiary;
(d) Real Property Dispositions made in connection with, or as a
part of, a Disposition permitted by Section 10.3; and
(e) other Real Property Dispositions by Borrower and its
Subsidiaries not otherwise permitted under this Section 10.8; provided that (i)
at the time of such Disposition, no Default shall exist or would result from
such Disposition and (ii) either (A) the value of such Real Property
Disposition, when combined with all other real Property Dispositions made as a
part of the same transaction or a related series of transactions, does not
exceed $100,000,000 or (B) the value of such Real Property Disposition, when
combined with the value of all other real Property Dispositions made in reliance
on this Section 10.8(e)(ii)(B) during the term of this Agreement (other than any
such Real Property Dispositions as are or have become permitted under another
clause of this Section 10.8), shall not exceed 15% of the consolidated total
assets from time to time of Borrower and its Subsidiaries on a consolidated
basis.
ARTICLE XI
EVENTS OF DEFAULT
11.1 EVENTS OF DEFAULT. Any of the following shall constitute an "Event
of Default":
(a) NON-PAYMENT. Borrower fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan, or (ii) within five
Business Days after the same becomes due, payment of any interest, fee or any
other amount payable hereunder or under any other Loan Document; or
(b) REPRESENTATION OR WARRANTY. Any representation, warranty,
certification, or statement of fact made or deemed made by or on behalf of
Borrower herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading when made or
deemed made; or
FIVE YEAR CREDIT AGREEMENT Page 19
(c) SPECIFIC DEFAULTS. Borrower shall fail to observe or perform
any covenant contained in Sections 9.1 through 9.13 and 10.1 through 10.8,
inclusive; or
(d) OTHER DEFAULTS. Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a), (b) or (c) above) for 15 Business Days after the earlier of (i) the
date upon which the chief financial officer, chief accounting officer or other
senior officer of Borrower knew or reasonably should have known of such failure;
or (ii) notice thereof has been given to Borrower by Lender; or
(e) CROSS-DEFAULT. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or
(f) INSOLVENCY PROCEEDINGS, ETC. Borrower or any of its
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) INABILITY TO PAY DEBTS, ATTACHMENTS. (i) Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 60 days after its issue or levy; or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(i) MONETARY JUDGMENTS. A judgment or order for the payment of
money in excess of the Threshold Amount shall be rendered against Borrower or
any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(j) CHANGE OF CONTROL. There occurs any Change of Control in
respect to Borrower.
11.2 REMEDIES. If any Event of Default occurs, then, and in every such
event, Lender shall (i) have no further obligation to make Loans, (ii) by notice
to Borrower declare the Loans (together with accrued interest thereon and all
other amounts owing under the Loan Documents) to be, and the Loans (and such
interest and other amounts) shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by Borrower and (iii) exercise all rights and remedies
available to it under the Loan Documents or applicable law; provided that in the
case of any of the Events of Default specified in subsections (f) or (g) upon
the expiration of the 60-day periods mentioned therein), without any notice to
Borrower or any other act by Lender, the obligation to make Loans shall
thereupon terminate and the Loans (together with accrued interest thereon and
all other amounts owing under the Loan Documents) shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Borrower.
11.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
FIVE YEAR CREDIT AGREEMENT Page 20
ARTICLE XII
TAXES, YIELD PROTECTION, ILLEGALITY
12.1 CHANGE IN LAW. If Lender determines that as a result of the
introduction or any change in or in the interpretation of any Law, including
illegality, or Lender's compliance therewith, there shall be any increase in the
cost to Lender of agreeing to make or making, funding or maintaining LIBOR Rate
Loans, or a reduction in the amount received or receivable by Lender in
connection with any of the foregoing, resulting from taxes , changes in the
basis of taxation of overall net income or overall gross income by the United
States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized, and reserve
requirements, then from time to time upon demand of such Lender, Borrower shall
pay to Lender such additional amounts as will compensate Lender for such
increased cost or reduction.
12.2 NEW LAWS. If Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by Lender therewith, has the effect of reducing the rate
of return on the capital of Lender or any corporation controlling such Lender as
a consequence of such Lender's obligations hereunder (taking into consideration
its policies with respect to capital adequacy and Lender's desired return on
capital), then from time to time upon demand of Lender, Borrower shall pay to
such Lender such additional amounts as will compensate Lender for such
reduction.
12.3 RESERVE REQUIREMENTS. Borrower shall pay to Lender, as long as
Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including LIBOR funds or deposits, additional interest
on the unpaid principal amount of each LIBOR Rate Loan equal to the actual costs
of such reserves allocated to such Loan by Lender (as determined by Lender in
good faith, which determination shall be conclusive absent manifest error),
which shall be due and payable on each date on which interest is payable on such
Loan, provided Borrower shall have received at least 15 days' prior notice of
such additional interest from Lender; provided, further, that Borrower shall
only be obligated to make payments under this Article 12 to the extent such
payments relate to the period following the date that is 180 days prior to the
date of such notice; and provided, further, that the foregoing limitation shall
not apply to any increased costs or reduction in return on capital arising out
of the retroactive application of any law, rule, guideline or directive as
aforesaid within such 180 day period. If Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 15 days from receipt of such notice.
12.4 COMPENSATION FOR LOSSES. Upon demand of Lender from time to time,
Borrower shall promptly compensate Lender for and hold Lender harmless from any
loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
LIBOR 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); or
(b) any failure by Borrower (for a reason other than the failure
of Lender to make a Loan) to prepay, borrow, continue or convert any LIBOR Rate
Loan on the date or in the amount notified by Borrower; or
(c) any breakage costs, charges or fees incurred during the 180
days following the Closing Date as a result of the syndication of this Agreement
and the Obligations hereunder.
including 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, but excluding any loss of
anticipated profits. Borrower shall also pay any customary administrative fees
charged by Lender in connection with the foregoing.
12.5 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A certificate
of Lender claiming compensation under this Article XII and setting forth the
additional amount or amounts to be paid to it hereunder, and in reasonable
detail the basis therefor, shall be conclusive in the absence of manifest error.
In determining such amount, Lender may use any reasonable averaging and
attribution methods.
12.6 SURVIVAL. All of Borrower's obligations under this Article XII shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE XIII
MISCELLANEOUS
13.1 NO WAIVER BY LENDER. No failure or delay of Lender in exercising any
right, power or remedy under this Agreement or any Loan Document shall operate
as a waiver of such right, power or remedy of Lender or of any other right. A
waiver of any provision of any Loan Document shall not constitute a waiver of or
prejudice Lender's right otherwise to demand strict compliance with that
provision or any other provision. Any waiver, permit, consent or approval of any
kind or
FIVE YEAR CREDIT AGREEMENT Page 21
character on the part of Lender must be in writing and shall be effective only
to the extent specifically set forth in such writing.
13.2 COSTS AND FEES. Without limiting any other provisions of this
Agreement, Borrower hereby agrees to pay Lender on demand an amount equal to all
costs and expenses incurred by Lender in connection with the negotiation,
preparation, execution, administration and enforcement of the Loan Documents,
including without limitation all fees of outside counsel.
13.3 AGREEMENTS ENFORCEABLE. Borrower reaffirms the representations and
warranties in each of the existing Loan Documents and acknowledges that except
as amended previously or herein, each such Loan Document remains in full force
and effect and is and shall remain valid and enforceable in accordance with its
terms.
13.4 NOTICES. Except as otherwise specifically set forth in any Loan
Document, all notices, requests and demands hereunder shall be in writing, and
shall be deemed to have been given when hand-delivered, when deposited in the
mail as first class, registered or certified mail, postage prepaid, or when sent
by telecopier, addressed as set forth below; provided, however, that any notice,
request or demand by Borrower to Lender shall not be effective until received by
Lender. Any party may at any time change its address for notices by giving
notice of such change to the other parties.
If to Borrower: Xxxxxxxxx'x, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Facsimile (000) 000-0000 and 000-0000
If to Lender: U.S. Bank National Association
National Corporate Banking
000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxxx, Xxxxx 00000
Facsimile (000) 000-0000
13.5 COLLECTION COSTS AND ATTORNEY FEES. Whether or not litigation is
commenced, Borrower promises to pay all costs of collecting any amounts which
may become due to Lender under any of the Loan Documents. Without limiting the
foregoing, if litigation is commenced to enforce or construe any term of any of
the Loan Documents, the prevailing party shall be entitled to recover from the
other party all costs thereof, including but not limited to such sums as the
court may adjudge reasonable as attorney fees at trial, in any appellate
proceeding, proceeding under the bankruptcy code or receivership and
post-judgment attorney fees incurred in enforcing any judgment.
13.6 INTEGRATION; CONFLICTING TERMS. This Agreement together with the
other Loan Documents comprises the entire agreement of the parties on the
subject matter hereof and supersedes and replaces all prior agreements, oral and
written, on such subject matter. If any term of any of the other Loan Documents
expressly conflicts with the provisions of this Agreement, the provisions of
this Agreement shall control; provided, however, that the inclusion of
supplemental rights and remedies of Lender in any of the other Loan Documents
shall not be deemed a conflict with this Agreement.
13.7 GOVERNING LAW AND JURISDICTION.
13.7.1 THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF IDAHO; PROVIDED THAT
BORROWER AND LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
13.7.2 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF IDAHO OR
OF THE UNITED STATES FOR THE DISTRICT OF IDAHO, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, BORROWER AND LENDER CONSENT, TO THE NON-EXCLUSIVE JURISDICTION
OF THOSE COURTS, AND IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.
BORROWER AND LENDER EACH WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY IDAHO LAW.
13.8 ADDITIONAL ACTS. Upon request by Lender, Borrower will from time to
time provide such information, execute such documents and do such acts as may
reasonably be required by Lender in connection with any indebtedness or
obligations of any of them to Lender.
13.9 DOCUMENTS SATISFACTORY TO LENDER. All information, documents and
instruments required to be executed or delivered to Lender shall be in form and
substance satisfactory to Lender.
13.10 WAIVER OF JURY TRIAL. BORROWER AND LENDER EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS
FIVE YEAR CREDIT AGREEMENT Page 22
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
EITHER OF THE PARTIES AGAINST THE OTHER, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH AGREES THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
13.11 EXHIBITS. All Exhibits referred to herein are attached hereto and
hereby incorporated by reference as if fully set forth herein.
13.12 COMPUTATIONS. All Loans to which the Prime Rate applies shall be
computed on the basis of a 365/366 year and applied to the actual number of days
elapsed. All other interest rates and fees referred to herein shall be computed
on the basis of a 360-day year and applied to the actual number of days elapsed.
13.13 REFERENCES.
13.13.1 References to any Loan Document shall mean such Loan
Document as amended, modified, supplemented or extended from time to time and
any number of substitutions, renewals and replacements thereof or therefor.
13.13.2 References to governmental laws, statutes, ordinances, rules
and regulations shall be construed as including all amendments, consolidations
and replacements thereof or therefor.
13.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts. Each signed counterpart shall be deemed an original, and all of
said counterparts taken together shall be deemed to constitute but one and the
same instrument.
13.15 USA PATRIOT ACT NOTICE. Lender hereby notifies Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies Borrower, which information
includes the name and address of Borrower and other information that will allow
such Lender to identify Borrower in accordance with the Act.
13.16 ASSIGNMENT AND PARTICIPATION. Upon notice to Borrower, Lender may
assign and/or grant participations in the Loans to another lender and may
provide information of any and all kinds concerning Borrower in connection
therewith.
BORROWER: LENDER:
XXXXXXXXX'X, INC. U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxx X. Xxxx By /s/ Xxxxx X. Xxxxxx
----------------- -------------------
Title Group Vice President and Treasurer Title Vice President
FIVE YEAR CREDIT AGREEMENT Page 23
EXHIBIT A
BORROWER'S AUTHORIZED REPRESENTATIVES
PURSUANT TO
ARTICLE 3.8.2 OF THE CREDIT AGREEMENT
Name: Xxxxxxx Xxxxxxxx Telephone: (000) 000-0000
Name: Xxxx Xxxx Telephone: (000) 000-0000
Name: Xxxx Xxxxxx Telephone: (000) 000-0000
Name: Xxxxxxx Xxxx Telephone: (000) 000-0000
Name: Xxxxx Xxxxx Telephone: (000) 000-0000
Name: Xxxxx Xxxx Telephone: (000) 000-0000
Name: Xxxxx Xxxxxxx Telephone: (000) 000-0000
A-1
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: __________, _____
To: U.S. Bank National Association
Ladies and Gentlemen:
Reference is made to that certain Five-Year Credit Agreement, dated as of July
__, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement"; the terms defined therein being used
herein as therein defined), among Xxxxxxxxx'x, Inc., a Delaware corporation (the
"Borrower"), and U.S. Bank National Association (the "Lender").
The undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the _____________________________________________ of the Borrower, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Lender, and that:
[Use following paragraph 1 for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 9.1(a) of the Agreement for the fiscal year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements required
by Section 9.1(b) of the Agreement for the fiscal quarter of the Borrower ended
as of the above date. Such financial statements fairly present the financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period has
been made under the supervision of the undersigned with a view to determining
whether during such fiscal period the Borrower performed and observed all its
Obligations under the Loan Documents, and
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE
BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
B-1
Form of Compliance Certificate
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED AND
THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:]
4. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
[Use following paragraph 5 only for fiscal YEAR-END financial statements]
5. Since the date of the Audited Financial Statements, there has been no
event or circumstance (except for events and circumstances disclosed in the Form
10-K filed by the Borrower with the SEC for the fiscal year of the Borrower
ended January 29, 2004), either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect with respect
to the Borrower and its Subsidiaries.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_______________, _____.
XXXXXXXXX'X, INC.
By:________________________________
Name:______________________________
Title:_____________________________
B-2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 1
to the Compliance Certificate
($ in 000's)
I. SECTION 10.7(a) - FIXED CHARGE COVERAGE RATIO.
A. Consolidated EBITDAR for four consecutive fiscal quarters ending on
above date ("Subject Period"):
1. Consolidated Net Income before One Time Charges for Subject
Period: $__________
2. Consolidated Interest Charges for Subject Period: $__________
3. Provision for income taxes for Subject Period: $__________
4. Depreciation and amortization expenses for Subject Period: $__________
5. Consolidated Lease Payments for Subject Period: $__________
6. Other non-recurring non-cash expenses for Subject Period: $__________
7. Cash One Time Charges for Subject Period: $__________
8. All non-cash non-recurring items increasing Consolidated
Net Income for Subject Period: $__________
9. Any cash expenditures made for Subject Period related
either to non-cash One Time Charges excluded from
Line I.A.1 or non-cash, non-recurring expenses added
back under Line I.A.6: $__________
10. Non-cash extraordinary gains for Subject Period: $__________
11. Consolidated EBITDAR (Lines I.A.1 + 2 + 3 + 4 + 5
+ 6 - 7 - 8 - 9 - 10): $__________
B. Consolidated Interest Charges for Subject Period: $__________
C. Consolidated Lease Payments for Subject Period: $__________
B-3
Form of Compliance Certificate
D. Fixed Charge Coverage Ratio
(Line I.A.11 / (Line I.B + Line I.C)): ______ to 1
Minimum required: ______ to 1
FISCAL QUARTER ENDING CLOSEST TO: FIXED CHARGE COVERAGE RATIO NOT TO BE LESS THAN:
July 31, 2004, 2.50 to 1.00
October 31, 2004,
January 31, 2005 and
April 30, 2005
---------------------------------------------------------------------------------------
July 31, 2005, 2.60 to 1.00
October 31, 2005,
January 31, 2006 and
April 30, 2006
---------------------------------------------------------------------------------------
July 31, 2006, and 2.70 to 1.00
each fiscal quarter thereafter
II. SECTION 10.7(b) - CONSOLIDATED LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date (as adjusted for
any acquisition pursuant to Section 10.7): $__________
B. Consolidated Lease Payments for which the Borrower or any of its
Subsidiaries is obligated during any period of four consecutive
fiscal quarters of the Borrower at Statement Date (as adjusted for
any acquisition pursuant to Section 10.7): $__________
C. Adjusted Consolidated Funded Indebtedness for Subject Period (Line
II.A + (Line II.B times 8)): $__________
D. Consolidated EBITDAR for Subject Period (Schedule 3): $__________
E. Consolidated Leverage Ratio (Line II.C / Line II.D): ______ to 1
Maximum permitted: ______ to 1
PERIOD: CONSOLIDATED LEVERAGE RATIO NOT TO EXCEED:
----------------------------------------------------------------------------------------------------
Closing Date through the last day of the fiscal 4.50 to 1.00
quarter ending closest to April 30, 2006
----------------------------------------------------------------------------------------------------
First day of the fiscal quarter ending closest to 4.25 to 1.00
July 31, 2006 through the last day of the fiscal quarter
ending closest to April 30, 2007
----------------------------------------------------------------------------------------------------
First day of the fiscal quarter ending closest to 4.00 to 1.00
July 31, 2007 and at all times thereafter
B-4
Form of Compliance Certificate
For the Quarter/Year ended _______________ ("Statement Date")
SCHEDULE 3
to the Compliance Certificate
($ in 000's)
CONSOLIDATED EBITDAR
(in accordance with the definition of Consolidated EBITDAR
as set forth in the Agreement and pursuant to the Fixed Charge Coverage Ratio
calculation set forth in Section 10.7(a) of the Credit Agreement)
Consolidated Quarter Quarter Quarter Quarter Twelve
EBITDAR Ended Ended Ended Ended Months Ended
-----------------------------------------------------------------------------------------------------------------------
Consolidated Net
Income before One Time
Charges
-----------------------------------------------------------------------------------------------------------------------
+ Consolidated
Interest Charges
-----------------------------------------------------------------------------------------------------------------------
+ Provision for income taxes
-----------------------------------------------------------------------------------------------------------------------
+ Depreciation and amortization
expense
-----------------------------------------------------------------------------------------------------------------------
+ Consolidated Lease
Payments
-----------------------------------------------------------------------------------------------------------------------
+ Other non-recurring
non-cash expenses
-----------------------------------------------------------------------------------------------------------------------
- Cash One Time
Charges
-----------------------------------------------------------------------------------------------------------------------
- All non-cash non-
recurring items
increasing
Consolidated Net
Income
-----------------------------------------------------------------------------------------------------------------------
- Cash expenditures related to
either (A) non-cash One Time
Charges excluded from
Consolidated Net Income or
(B) non-cash, non-recurring
expenses added back to
Consolidated Net Income
pursuant to non-cash non-
recurring items
increasing Consolidated Net
Income above
-----------------------------------------------------------------------------------------------------------------------
- Non-cash
extraordinary gains
-----------------------------------------------------------------------------------------------------------------------
= Consolidated
EBITDAR
B-5
Form of Compliance Certificate
For the Quarter/Year ended _______________ ("Statement Date")
SCHEDULE 3
to the Compliance Certificate
($ in 000's)
CONSOLIDATED EBITDAR
(in accordance with the definition of Consolidated EBITDAR
as set forth in the Agreement and pursuant to the Consolidated Leverage Ratio
calculation set forth in Article I and 10.7(b) of the Credit Agreement)
Consolidated Quarter Quarter Quarter Quarter Twelve
EBITDAR Ended Ended Ended Ended Months Ended
-----------------------------------------------------------------------------------------------------------------------
Consolidated Net Income
before One Time Charges
-----------------------------------------------------------------------------------------------------------------------
+ Consolidated Interest
Charges
-----------------------------------------------------------------------------------------------------------------------
+ Provision for income taxes
-----------------------------------------------------------------------------------------------------------------------
+ Depreciation and amortization
expense
-----------------------------------------------------------------------------------------------------------------------
+ Consolidated Lease
Payments
-----------------------------------------------------------------------------------------------------------------------
+ Other non-recurring
non-cash expenses
-----------------------------------------------------------------------------------------------------------------------
- Cash One Time
Charges
-----------------------------------------------------------------------------------------------------------------------
- All non-cash non-
recurring items increasing
Consolidated Net Income
-----------------------------------------------------------------------------------------------------------------------
- Cash expenditures related to
either (A) non-cash One Time
Charges excluded from
Consolidated Net Income or
(B) non-cash, non-recurring
expenses added back to
Consolidated Net Income
pursuant to non-cash non-
recurring items
increasing Consolidated Net
Income above
-----------------------------------------------------------------------------------------------------------------------
- Non-cash
extraordinary gains
-----------------------------------------------------------------------------------------------------------------------
= Consolidated
EBITDAR
B-6
FORM OF COMPLIANCE CERTIFICATE
EXHIBIT C
[US BANK LOGO]
CONTINUING REIMBURSEMENT AGREEMENT FOR
LETTERS OF CREDIT
INCLUDING U.S. BANK GLOBAL TRADE WORKSSM
This continuing Agreement for Letters of Credit, is made effective this _____
day of _______________________, ______ by and between U.S. BANK NATIONAL
ASSOCIATION, ("Bank") and _______________________________, ("Applicant").
In consideration of the issuance by U.S. Bank or an affiliate of Bank (each such
affiliated issuer, an "Other Issuer") of one or more Credits, Applicant agrees
that the following terms shall apply to each Application and each Credit issued
by Bank or any Other Issuer (either or both referred to herein as "Bank").
1. THE CREDIT.
a. From time to time, Applicant may request Bank to issue or to request one
of its subsidiaries or affiliates to issue one or more letters of credit
(each, a "Credit") substantially in accordance with the terms of any
application (each, an "Application") submitted to Bank by Applicant. All
Credits will be deemed irrevocable unless otherwise stated in an
Application. Bank may either issue the Credit or request one of its
affiliates to issue the Credit. Bank may sell, assign or participate all
or any part of its rights and obligations under this Agreement, the
Application and the Credit. Without limiting the foregoing, any Other
Issuer may sell a participation in all or any part of its rights and
obligations under this Agreement and the Credit to Bank.
b. Bank hereby is authorized to set forth in the Credit the terms appearing
in the Application, with such modifications as Bank in its discretion may
determine are appropriate or necessary and are not materially different
from such terms.
c. All communications relating to the Credit will be sent at Applicant's
risk. Bank shall have no responsibility for any inaccuracy of translation,
or any error or delay in transmission or delivery by mail,
telecommunication or any other method outside of the Bank's reasonable
control, including all communications made through a correspondent.
d. Neither Bank nor its correspondents shall be in any way responsible for
the performance of any beneficiary's obligations to Applicant or for the
form, sufficiency, accuracy, genuineness, authority of person signing,
falsification or legal effect, of any documents required by the Credit if
such documents appear in order on their face. Whether the documents
conform to the terms of the Credit and whether any demand is timely and in
proper form shall be independently
US BANK GLOBAL TRADE WORKS Revised 01/13/03
determined by Bank in its sole discretion, which determination shall be
final and binding on Applicant.
e. Subject to Section 8b, Bank may in its discretion honor Applicant's
request to increase the amount of the Credit, extend the time for making
and honoring of demands under the Credit and otherwise modify the terms
and conditions governing the Credit. In the event of any extension of the
maturity or time for negotiation or presentation of the drafts or
documents or any other modification of the terms or provisions of, or
increase in the amount of, the Credit at the request or with the consent
of the Applicant, this Agreement shall be binding upon the Applicant with
regard to (i) the Credit as so increased or otherwise modified, (ii)
drafts, documents and property covered thereby, and (iii) any action taken
by Bank or Bank's correspondents in accordance with such extension,
increase or other modification; (iv) that Bank and any of Bank's
correspondents may pay any draft dated on or before the expiration of any
time limit expressed in the Credit, regardless of when drawn or presented
for payment and when or whether negotiated, provided the required
documents are presented prior to the expiration of the Credit.
f. Applicant shall promptly review all information, documents and instruments
delivered to Applicant from time to time by Bank, including any Credits
upon issuance and any amendments and all related presentations and
negotiations, and shall notify Bank within five banking days after receipt
if Applicant claims that Bank has failed to comply with Applicant's
instructions or Bank's obligations with respect to the Credit, has
wrongfully honored or dishonored any presentation under the Credit or
claims any other irregularity. If Applicant does not so notify Bank within
such time period, Applicant shall be conclusively deemed to have waived
and shall be precluded from asserting such claim(s).
2. INTERNET-BASED LETTER OF CREDIT SERVICES ("INTERNET SERVICES").
a. If requested by Applicant and agreed to by Bank, Bank will grant Applicant
access to Bank's letter of credit-related Internet Services. U.S. Bank
Global Trade Works is an example of one such Internet Service. U.S. Bank's
Internet Services may be used by Applicant for the processing and issuance
of Credits in accordance with the terms of this Agreement. Bank shall post
Rules of Use of the Internet Services within each such Service Applicant's
initial use of an Internet Service shall constitute Applicant's acceptance
of the Rules of Use.
b. Applicant agrees to use the Internet Services in accordance with the
security procedures established by Bank. Due to emerging technologies and
ensuing changes in security practices, Bank reserves the right to
supplement or change its security procedures from time to time upon
reasonable notice to Applicant. Applicant shall designate one or more
Security Administrators. The Security Administrator is responsible for
setting up Applicant's Internet Services and for establishing internal
security procedures related to such services, including
US BANK GLOBAL TRADE WORKS Revised 01/13/03
without limitation, accepting software for delivery, assigning users,
establishing authority levels, distributing passwords and other security
devices and procedures related to the Internet Services. Designation of
any Security Administrator may be amended or revoked upon written notice
to Bank. Bank shall have a reasonable time to act on any such notice.
c. Applicant is responsible for maintaining the security and confidentiality
of all IDs, passwords and other security devices issued to or by Applicant
(collectively, "Applicant's Internal Security Devices"). Applicant shall
not permit unauthorized individuals to use Applicant's Internal Security
Devices to access the Internet Services. Applicant is responsible for the
actions of any individuals using Applicant's Internal Security Devices to
access to the Internet Services and Applicant shall be bound by any
transmission to Bank that is accepted in accordance with the established
security procedures. Applicant shall promptly notify Bank if Applicant has
actual knowledge that its Internal Security Devices have been compromised.
Applicant agrees to defend and indemnify Bank against any claims, losses,
damages, costs, expenses, fines and other liabilities arising out of
Applicant's failure to maintain the security and confidentiality of
Applicant's Internal Security Devices or arising out of the unlawful use
of any Internet Services by Applicant or any person who obtains access to
the Internet Services using Applicant's Internal Security Devices.
3. REIMBURSEMENT OBLIGATIONS. Applicant promises to pay Bank on demand at the
address specified in the Application for Credit in the following amounts:
a. The amount of each draft or other request for payment (hereinafter called
a "draft") drawn under the Credit (whether drawn before, on or, if in
accordance with the law applicable to the Credit, after the expiration
date stated in the Credit). For amounts payable in United States currency,
Applicant agrees to reimburse Bank in United States currency. For amounts
payable in other currencies, Applicant agrees to reimburse Bank an
equivalent amount in United States currency at Bank's then current selling
rate for such foreign currencies or Applicant will reimburse Bank by
sending the foreign currency amount due Bank by wire transfer to the
account and location designated by Bank, or at Bank's option, in any other
currency, place, form and manner acceptable to Bank. Upon request,
Applicant will pay Bank in advance, in United State currency, all sums
necessary for Bank to pay all such drafts upon presentation whether
payable in United States currency or otherwise. If the draft is a time
draft, Applicant shall make payment without demand sufficiently in advance
of its maturity to enable Bank to arrange for funds to reach the place of
payment when due.
b. All commissions, at the rate fixed by Bank, shall be payable from time to
time at such intervals as Bank may require and shall be nonrefundable,
whether or not the Credit is drawn upon, reduced in time or amount or
otherwise modified. Applicant also agrees to pay all of Bank's other
standard fees and charges related to Credits.
US BANK GLOBAL TRADE WORKS Revised 01/13/03
c. All taxes, levies, imposts, duties, charges, fees, deductions or
withholdings of any nature whatsoever paid or incurred by Bank in
connection with this Agreement, the Credit or any related transactions,
and any liability with respect thereto (including but not limited to
interest, penalties and expenses).
d. Interest on all amounts due under this Agreement from the applicable due
date until paid will be variable at the per annum rate fixed from time to
time by Bank. Interest shall be calculated on the basis of a 360-day year
and the actual number of days elapsed. Interest accrued hereunder shall be
due and payable on the first day of each calendar month.
e. Without limiting Applicant's obligations to any Other Issuer, but without
duplication, Applicant promises to pay Bank on demand, at the Bank
International Banking Office designed by Bank, an amount equal to all
amounts which Bank pays or becomes obligated to pay to Other Issuer with
respect to the Credit, whether as a participant in the Credit or
otherwise.
f. Notwithstanding any other provision of this Agreement, Applicant's
obligation to make any payment hereunder to any Other Issuer shall, to the
extent of such payment, be satisfied by payment to Bank as set forth in
this Agreement.
g. Applicant hereby authorizes Bank to automatically deduct from any of its
accounts with Bank, all amounts which become due to Bank under this
Agreement. Applicant will pay all fees on the account which result from
the automatic deductions, including any overdraft/NSF charges. If for any
reason Bank does not charge the account for any amount due, or if an
automatic deduction is reversed, the amount due is still owing to Bank as
set forth herein.
4. SECURITY AND INSURANCE.
a. As security for payment of any and all of Applicant's obligations to Bank
and any other Issuer under this Agreement, any Credit or any other
indebtedness of Applicant to Bank and any Other Issurer, Applicant hereby
grants Bank a continuous and continuing interest in (a) all property of
the Applicant or in which the Applicant has an interest (including, but
not limited to, all bank accounts Applicant maintains with Bank and all
proceeds thereof) and which is now or hereafter for any reason in the
possession or control of, or in transit to, Bank, Bank's affiliates or the
agent or bailee thereof, and (b) any and all bills of lading, other
documents of title, policies, certificates of insurance, chattel paper,
and general intangibles accompanying or relative to a Credit or any drafts
drawn thereunder, and any and all inventory, goods and other property
shipped under, in connection with or relative to a Credit or any drafts
drawn thereunder. In addition to all other rights which Bank may have,
Applicant hereby authorizes Bank 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 Bank to or
US BANK GLOBAL TRADE WORKS Revised 01/13/03
for the credit or the account of the Applicant against any and all of the
obligations of the Applicant now or hereafter existing under this
Agreement, irrespective of whether Bank shall have made any demand under
this Agreement and although such deposits, indebtedness or obligations may
be unmatured or contingent.
b. If any time Bank requires collateral (or additional collateral), the
Applicant will, on demand, assign and deliver to Bank as security for any
and all obligations of the Applicant now or hereafter existing under this
Agreement collateral of a type and value satisfactory to Bank or make such
cash payment as Bank may require and execute and deliver to Bank such
security agreements, pledge agreements, or other documents requested by
Bank covering such collateral.
c. At Bank's request, Applicant will execute any financing statements and
other documents or instruments as Bank may require to perfect the security
interests granted or contemplated hereunder and will pay the cost of any
filings in connection therewith.
d. For commercial credits, Applicant shall keep any property described in the
Credit adequately covered by insurance satisfactory to Bank, issued by
companies satisfactory to Bank, and at Bank's request will furnish
certificates or evidence thereof and will assign insurance policies or
certificates to Bank and make losses, adjustments or proceeds payable to
Bank. If any such policies procured by the Applicant fails to provide for
payment of the loss thereunder, the Applicant hereby makes the loss
payable to Bank under such policy and assigns to Bank all proceeds of such
policy and agrees to accept proceeds of all insurance as Bank's agent and
to hold same in trust for Bank, and forthwith to deliver the same to Bank,
with Applicant's endorsement where necessary, and Bank or any of Bank's
officers are hereby irrevocably empowered, with power of substitution, to
endorse any check in the name of the Applicant received in payment of any
loss or adjustment.
e. Bank shall not be liable for any failure to collect or demand payment of,
or to protest of give any notice of non-payment of, any collateral or any
part thereof or for any delay in so doing, nor shall Bank be under any
obligation to take any action whatsoever with respect to the collateral or
any part thereof. Bank shall use reasonable care in the custody and
preservation of the collateral in Bank's possession but need not take any
steps to preserve rights against prior parties or to keep the collateral
identifiable. Bank shall have no obligation to comply with any recording,
re-recording, filing, re-filing or other legal requirement necessary to
establish or maintain the validity, priority or enforceability of, or
Bank's right in and to, the collateral, or any part thereof. Bank may
exercise any right of the Applicant with respect to any collateral. Bank
may endorse the Applicant's name on any and all notes, checks, drafts,
bills of exchange, money orders or commercial paper included in the
collateral or representing the proceeds thereof.
5. DEFAULT AND REMEDIES.
US BANK GLOBAL TRADE WORKS Revised 01/13/03
a. Time is of the essence in this Agreement. The occurrence of any of the
following shall be an Event of Default hereunder:
i. Default in payment or performance of any of Applicant's
obligations hereunder or under any promissory note or other
agreement between Bank and Applicant;
ii. Default under any security documents securing Applicant's
obligations hereunder, whether executed by Applicant or any
other person;
iii. Levy or proceeding against any property of Applicant or any
guarantor of Applicant's obligations hereunder ("Guarantor");
iv. Death, dissolution, termination of existence, insolvency or
business failure of, appointment of a receiver for any part of
the property of, assignment for the benefit of creditors by,
commencement of any proceeding under any bankruptcy or
insolvency laws by or against, or entry of judgment against,
Applicant or any Guarantor;
v. Any warranty, representation or statement made or furnished to
Bank by Applicant or any Guarantor proves to have been false
in any material respect when made or furnished;
vi. Any event which gives the holder of any debt obligation of
Applicant or any Guarantor the right to accelerate its
maturity, whether or not such right is exercised;
vii. Any guaranty of Applicant's obligations hereunder ceases to
be, or is asserted by any person not to be, in full force and
effect; or
viii. Any material adverse change in the financial condition or
management of Applicant or any Guarantor, or if Bank for any
reason in good faith, deems itself insecure.
b. Upon the occurrence of any Event of Default and at any time thereafter,
Bank at its option and in addition to all other rights of Bank under this
Agreement, any related agreement and applicable law, may (i) without
notice or demand declare the amount for which the Credit was issued and
any other amounts owing hereunder immediately due and payable; and (ii)
exercise any and all rights and remedies of a secured party under the
Uniform Commercial Code and other applicable law.
6. CERTAIN WARRANTIES.
a. Applicant warrants that the execution, delivery and performance of this
Agreement are within its authority and are not in contravention of law, of
any terms of any agreement, instrument, order or judgment to which
Applicant is a party or by which it or its property may be bound or of any
provision of its charter document or bylaws, and that it has obtained all
necessary approvals and consents therefor.
US BANK GLOBAL TRADE WORKS Revised 01/13/03
b. Applicant represents and warrants that any Credit, and transactions
related thereto, shall be in compliance with any federal, state, local and
foreign laws, regulations, treaties or customs applicable to Bank or
Customer, including without limitation the regulations promulgated by
Office of Foreign Assets Control ("OFAC"), and any other foreign or
domestic legal restriction on doing business with certain individuals or
countries.
c. The Applicant will procure promptly all necessary licenses for the export,
import, shipping or warehousing of, or payment for property covered by the
Credit and will comply with all foreign and U.S. laws, rules and
regulations (including exchange control regulations) now or hereafter
applicable to the transaction related to the Credit or applicable to the
execution, delivery and performance by the Applicant of this Agreement.
7. CHANGES TO LAWS AND REGULATIONS. If any adoption of or change in law or
regulation, or in the interpretation or administration thereof by any
official authority shall impose on Bank any tax, charge, fee, deduction or
withholding of any kind whatsoever, or shall impose or modify any reserve
requirements, standards regarding capital adequacy or any other conditions
affecting this Agreement or the Credit, and the result of any of the
foregoing shall be to increase the cost to Bank of issuing and maintaining
the Credit, reduce the amount of any sum receivable by Bank hereunder or
reduce the rate of return on Bank's capital, then Applicant shall pay to
Bank upon demand such additional amount or amounts as Bank may specify to
be necessary to compensate Bank for such additional costs incurred or
reduction suffered.
8. GENERAL TERMS AND CONDITIONS.
a. Each Application shall be subject to all terms and conditions of this
Agreement. In addition, this Agreement shall apply to each Credit issued
or confirmed by Bank at the request of Applicant, including, without
limitation, all Credits (if any) previously opened and outstanding on the
date hereof.
b. Notwithstanding any other term hereof, Applicant understands and agrees
that the Credit can be revoked or amended only with the consent of the
beneficiary of the Credit, the bank or Other Issuer of the Credit and any
confirming bank.
c. If the Applicant requests Bank to issue a Credit for the account of a
third party, whether affiliated with Applicant or otherwise (the "Account
Party"), the Account Party shall have no rights against Bank. Bank may
deal with Applicant as if Applicant were the named Account Party.
d. Applicant shall give Bank prior written notice of any change of name,
address or place of business. Any notice of any nature by Applicant to
Bank must be given at Bank's office to which the application was
submitted.
US BANK GLOBAL TRADE WORKS Revised 01/13/03
e. The singular includes the plural. If Applicant consists of more than one
person, the obligations of Applicant hereunder are joint and several and
are binding upon any marital community of which any Applicant is a member.
This Agreement shall be binding on Applicant, its successors and assigns,
and shall inure to the benefit of Bank or Bank's successors, transferees
and assigns. Notwithstanding the foregoing, the Applicant may not assign
its rights under this agreement without Bank's prior written consent.
f. Notwithstanding the title appearing on any Credit Instrument, the rights
and obligations of Bank and Applicant with respect to the Credit shall be
as set forth herein.
g. The Application and/or the Credit will set forth which rules or customs
apply to the corresponding Credit. Such rules and customs may include, but
are not limited to, the International Standby Practices, as published by
the International Chamber of Commerce ("ISP") or the Uniform Customs and
Practice for Documentary Credits, as published by the International
Chamber of Commerce ("UCP"). In any event, the rules or practices set
forth in the Credit are incorporated herein and shall govern the Credit.
This Agreement and the Credit shall be governed by the internal laws of
the State in which the credit was issued and the United States of America
(the "Governing Laws"), except to the extent such laws are inconsistent
with the rules adopted in the Application as set forth above.
h. When possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if
any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
i. Applicant hereby indemnifies and agrees to defend and hold harmless Bank,
its officers, directors, agents, successors and assigns, from and against
any and all liabilities, claims, demands, losses and expenses (including
without limitation legal costs and attorney fees incurred in any appellate
proceeding, proceeding under the bankruptcy code or receivership and
post-judgment attorney fees incurred in enforcing any judgment), arising
from or in connection with this Agreement, the Credit or any related
transaction, except to the extent such claims arise from Bank's gross
negligence or willful misconduct.
j. Any action, inaction or omission taken or suffered by Bank or by any of
Bank's correspondents under or in connection with the Credit or any
relative drafts, documents or property, if in good faith and in conformity
with foreign or United States laws, regulations or customs applicable
thereto, shall be binding upon the Applicant and shall not place Bank or
any of Bank's correspondents under any resulting liability to the
Applicant. Without limiting the generality of the
US BANK GLOBAL TRADE WORKS Revised 01/13/03
foregoing, Bank and Bank's correspondents may act in reliance upon any
oral, telephonic, telegraphic, electronic or written request or notice
believed in good faith to have been authorized by the Applicant, whether
or not in fact given or signed by an authorized person.
k. Bank's waiver of any right on any occasion or occasions shall not be
construed as a bar or waiver of any other right or of such right on any
other occasion. Applicant hereby waives and agrees not to assert any
defense under any applicable statute of limitations, to the fullest extent
permitted by law.
l. Without notice to any Applicant and without affecting Bank's rights or
Applicant's obligations, Bank may deal in any manner with any person who
at any time is liable for, or provides any collateral for, any obligations
of Applicant to Bank. Without limiting the foregoing, Bank may impair,
release (with or without substitution of new collateral) and fail to
perfect a security interest in, any collateral provided by any person; and
xxx, fail to xxx, agree not to xxx, release, and settle or compromise
with, any person.
m. Except as otherwise provided herein or in any Credit, all notices and
other communications required or permitted to be given to any party hereto
shall be in writing or an electronic medium that is retrievable in a
perceivable form and shall be deemed given when delivered by hand,
electronically, by overnight courier, or when deposited in the United
States mail, postage prepaid, addressed as set forth in the Application.
n. Whether or not litigation or arbitration is commenced, Applicant promises
to pay all attorney fees and other costs and expenses incurred by Bank in
collecting overdue amounts or construing or enforcing any provision of
this Agreement or the Credit, including but not limited to reasonable
attorney fees at trial, in any arbitration, appellate proceeding,
proceeding under the bankruptcy code or receivership and post-judgment
attorney fees incurred in enforcing any judgment.
o. If the Credit is issued pursuant to a loan agreement or other separate
agreement, the terms of such other agreement shall control in the event of
a conflict between the terms of this Agreement and such other agreement.
p. This Agreement is a continuing agreement and shall remain in effect until
terminated, amended or replaced. This Agreement may be terminated by
Applicant or Bank by giving notice of termination to the other and may be
amended or replaced by a written agreement signed by Applicant and
accepted by Bank; provided, however that no such termination, amendment or
replacement shall alter or affect the undertaking of Applicant or Bank
with respect to any Credit issued, or commitment to issue, prior to such
termination, amendment or replacement.
US BANK GLOBAL TRADE WORKS Revised 01/13/03
q. This Agreement, as supplemented by the laws, rules and customs incorporate
herein by subpart (g) to this part, and as supplemented by the terms of
the Application, if any, constitutes the entire understanding between Bank
and the Applicant with respect to the matters treated herein and
specifically supersedes any prior or contemporaneous oral agreements.
r. Nothing in this Agreement shall be construed as imposing any obligation on
Bank to issue any Credit. Each Credit shall be issued by Bank in its sole
discretion and at its sole option.
s. Bank is authorized, but not obligated, to record electronically or
otherwise any telephone and other oral communications between Bank and
Applicant.
t. All terms and conditions on the attached Schedule 1, and any replacement
Schedule 1 are hereby incorporated herein. Applicant may change the
provisions of Schedule 1 by executing and delivering a new Schedule 1 to
Bank.
u. In the event Applicant submits an Application or other instruction by
facsimile transmission (each, a "Faxed Document"), Applicant agrees: (i)
each Faxed Document shall be deemed to be an original document and shall
be effective for all purposes as if it were an original; (ii) Applicant
shall retain the original of any Faxed Document and shall deliver it to
Bank upon request; (iii) if Applicant sends Bank a manually signed
confirmation of a Faxed Document, Bank shall have no duty to compare it to
the previously received Faxed Document nor shall it have any liability or
duty to act should the contents of the written confirmation differ
therefrom. Any manually signed confirmation of a Faxed Document must be
conspicuously marked "Previously transmitted by facsimile". Bank will not
be liable for issuance of duplicate letters of credit or amendments
thereto that result from Bank's receipt of confirmations not so marked;
(iv) Bank cannot effectively determine whether a particular facsimile
request is valid. Therefore Applicant shall have sole responsibility for
the security of using facsimile transmissions and for any authorized or
unauthorized Faxed Document received by Bank, purportedly on behalf of the
Applicant.
9. IMPORTANT NOTICE; ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING PREPAYMENT OF A DEBT INCLUDING VERBAL
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE.
APPLICANT ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS AGREEMENT.
US BANK GLOBAL TRADE WORKS Revised 01/13/03
APPLICANT:
_____________________________________
BY:__________________________________
TITLE:_______________________________
DATE:________________________________
U.S. BANK NATIONAL ASSOCIATION
BY:__________________________________
TITLE:_______________________________
DATE:_______________________________
US BANK GLOBAL TRADE WORKS Revised 01/13/03
SCHEDULE 1
AUTHORIZATION
CONTINUING REIMBURSEMENT AGREEMENT FOR
LETTERS OF CREDIT
The provisions of this Schedule 1 are hereby incorporated into and made a part
of the Continuing Reimbursement Agreement for Letters of Credit ("Agreement")
executed by and between U.S. BANK NATIONAL ASSOCIATION, ("Bank') and
____________________ ("Applicant"), dated ______________________ and delivered
to U.S. Bank. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Agreement.
1. In addition to those authorized through U.S. Bank Global Trade Works or
other electronic letter of credit application system offered by Bank, if
applicable, any one of the persons whose name, title and signature appears below
is authorized to give instructions to Bank and to execute and/or transmit
Applications, requests for amendments, requests for extensions and other
communications of any nature regarding any Credit issued by Bank for the
Applicant.
NAME TITLE SIGNATURE
------------------------- -------------------- ----------------------------
------------------------- --------------------
------------------------- -------------------- ----------------------------
------------------------- --------------------
------------------------- -------------------- ----------------------------
------------------------- --------------------
2. In addition to those authorized through U.S. Bank Global Trade Works or
other electronic letter of credit application system offered by Bank, if
applicable, the following persons are entitled to waive discrepancies contained
in documents presented under a Credit. (Applicant understands that upon any such
waiver, Applicant is obligated to reimburse Bank to the same extent as if the
documents fully complied with the terms of the Credit.):
TELEPHONE
NAME TITLE NUMBER
------------------------------ -------------------- -----------------------
------------------------------ -------------------- -----------------------
------------------------------ -------------------- -----------------------
US BANK GLOBAL TRADE WORKS Revised 01/13/03
3. Bank is instructed to automatically deduct from Account No. ____________
all amounts which become due under the Agreement. Should there be insufficient
funds in this account to reimburse Bank, Bank is authorized to deduct any
remaining amounts due from any of Applicant's accounts with Bank.
4. This Schedule 1 shall be effective upon receipt by the Bank. The Bank may
rely on this Schedule 1 until it has been revoked in writing by the Applicant
and the Bank has a reasonable opportunity to act on any such revocation.
APPLICANT:
___________________________________ U.S. BANK NATIONAL ASSOCIATION
By: _______________________________ By: __________________________________
Title: ____________________________ Title: _______________________________
Date: _____________________________ Date: ________________________________
US BANK GLOBAL TRADE WORKS Revised 01/13/03
EXHIBIT D
FORM OF NOTICE OF BORROWING
To: U.S. Bank National Association Date: ___________________
Attn: Xxx Xxxxxx
National Corporate Banking (BS-ID-CB8)
000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Ladies and Gentlemen:
The undersigned, Xxxxxxxxx'x, Inc. ("Borrower"), refers to the Five Year Credit
Agreement dated effective as of July ____, 2004 (as extended, renewed, amended
or restated from time to time, the "Credit Agreement") between Borrower and U.S.
Bank National Association ("Lender"), the terms defined therein being used
herein as therein defined, and hereby gives you notice irrevocably, pursuant to
Section 3.7 of the Credit Agreement, of the request for a Revolving Advance as
specified below:
1. The Business Day of the requested Revolving Advance is
____________________________.
2. The aggregate amount of the requested Revolving Advance is
_________________________.
3. The Variable Interest Rate Option chosen for this Revolving
Advance is:
9 Lender's Prime Rate
- LIBOR - One Week
- LIBOR - One Month
- LIBOR - Three Months
- LIBOR - Six Months
- LIBOR One Month Reset Daily
(Applicable only to Overnight Borrowing Request for
which this Rate is mandatory).
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the requested Revolving Advance
before and after giving effect thereto and to the application of the proceeds
therefrom:
a. the representations and warranties of Borrower contained in
Article VIII of the Credit Agreement are true and correct as
though made on and as of such date, except to the extent such
representations and warranties expressly refer to an earlier
date, in which case they are true and correct as of such date,
and except that this notice shall be deemed instead to refer
to the last day of the most recent year for which financial
statements have then been delivered in respect of the
representation and warranty made in Section 8.10 of the Credit
Agreement;
b. no Default or Event of Default has occurred and is
continuing, or would result from this request and the
Revolving Advance;
c. there has occurred since the date of the last request no
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect; and
d. after giving effect to the requested Revolving Advance, the
aggregate principal amount of all outstanding Revolving Loans
shall not at any time exceed the Maximum Revolving Loan
Amount.
XXXXXXXXX'X, INC.
By: _________________________________
Title: ______________________________
NOTICE OF BORROWING FORM -
EXHIBIT E
[US BANK LOGO]
PROMISSORY NOTE
BORROWER: XXXXXXXXX'X, INC. LENDER: U.S. BANK NATIONAL ASSOCIATION
000 XXXXXXXXXX XXXX. NATIONAL CORPORATE BANKING DEPARTMENT
XXXXX, XX 00000 000 X. XXXXXXX XXXX., XXXXX 000
XXXXX, XX 00000
PRINCIPAL AMOUNT: $100,000,000.00 DATE OF NOTE: JULY 8, 2004
CERTAIN DEFINITIONS.
"Advance" means that portion of the Principal Amount of this Note that Borrower
requests Lender to make available for Borrower's use from time to time which is
then made available for Borrower by Lender.
"Business Day" means a day that commercial banks are open for business in Boise,
Idaho.
""Five Year Credit Agreement" means an agreement styled "Five Year Credit
Agreement" dated effective as of July 8, 2004, between Borrower and Lender, the
terms of which are hereby incorporated by reference as if set forth here in
full.
"Indebtedness Rating" means the long-term unsecured senior, non-credit enhanced
debt rating of Borrower by Standard & Poor's Ratings Group or Xxxxx'x Investor
Service Inc. (in the case of a split rating, the higher rating will apply,
unless the split results in a difference of more than one rating, in which case
the rating one rating below the highest rating will apply).
"New York Banking Day" means any day (other than a Saturday or Sunday) on which
commercial banks are open for business in New York, New York.
"Overnight Borrowing" means a short-term loan that must be repaid by Borrower on
the Business Day following the Business Day in which it is borrowed.
PROMISE TO PAY. XXXXXXXXX'X, INC. (REFERRED TO IN THIS NOTE AS "BORROWER")
PROMISES TO PAY TO U.S. BANK NATIONAL ASSOCIATION ("LENDER"), OR ORDER, IN
LAWFUL MONEY OF THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF ONE
HUNDRED MILLION & 00/100 DOLLARS ($100,000,000.00) OR SO MUCH AS MAY BE
OUTSTANDING, TOGETHER WITH INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL BALANCE
OF EACH ADVANCE. INTEREST SHALL BE CALCULATED FROM THE DATE OF EACH ADVANCE
UNTIL REPAYMENT OF EACH ADVANCE.
PAYMENT. Repayment of this Note depends upon the interest rate option chosen by
Borrower. For Advances subject to the Index (as hereafter defined), Borrower
will repay the Advances in one payment of all outstanding principal plus all
accrued unpaid interest on July 7, 2009. In addition, Borrower will pay all
accrued interest at the end of each calendar quarter, beginning with the quarter
ending September 30, 2004. For Advances subject to the LIBOR Option (as
hereafter defined), Borrower will repay the Advances in one payment of all
outstanding principal plus all accrued interest at the maturity date of the
applicable LIBOR term chosen by Borrower. In addition, if Borrower chooses a
LIBOR term of six months for any Advance, Borrower will pay accrued interest at
the end of the first three months of the six month LIBOR term. For Advances for
Overnight Borrowings which are subject to the One Month LIBOR Rate (as hereafter
defined), Borrower will repay the Advances in one payment of all outstanding
principal plus all accrued interest on the next succeeding Business Day
following the Business Day on which the Advance was made. For advances to which
the Index (as defined below) applies, the annual interest rate for this Note is
computed on 365/366 basis; that is, by applying the ratio of the annual interest
rate over an actual year of 365 or 366 days, multiplied by the outstanding
principal balance, multiplied by the actual number of days the principal balance
is outstanding. For advances to which the LIBOR Option (as defined below)
applies, interest shall be computed on the basis of a year of 360 days. Borrower
will pay Lender at Lender's address shown above or at such other place as Lender
may designate in writing.
RATE OPTIONS. Borrower shall have a choice of the following interest rate
options. If Borrower fails to select an Interest Rate Option, the interest rate
shall be at an interest rate of 0.00 percentage points over the Index described
in the paragraph entitled "VARIABLE INTEREST RATE" described below.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Lender's "Prime Rate"
(the "Index"). This is the rate of interest which Lender from time to time
establishes as its Prime Rate and is not, for example, the lowest rate of
interest which Lender collects from any borrower or class of borrowers. The
interest rate shall be adjusted without notice effective on the day Lender's
Prime Rate changes. Lender will tell Borrower the current Index rate upon
Borrower's request. Borrower understands that Lender may make loans based on
other rates as well. The interest rate change will not occur more often than
each day. THE INTEREST RATE TO BE APPLIED TO THE UNPAID PRINCIPAL BALANCE OF
THIS NOTE WILL BE AT A RATE EQUAL TO THE INDEX. NOTICE: Under no circumstances
will the interest rate on this Note be more than the maximum rate allowed by
applicable law.
LIBOR TERM INTEREST RATE OPTION. As an alternative to the Index, Borrower may
upon two (2) New York Banking Days prior notice, request an alternative interest
rate on all or part of the principal balance of this Note (excluding Overnight
Borrowings as hereafter set forth) for terms of one week or one, three or six
months at a per annum rate of interest equal to the asking price per annum for
U.S. Dollar denominated deposits in the London, England interbank market as such
price is presented to Lender by Dow, Xxxxx & Company through Page 3750 of its
Dow, Xxxxx Telerate, Inc. subsidiary or a similar quote reporting service
("LIBOR") plus a percentage dependent upon Borrower's Indebtedness Rating at the
time of Advance, as follows:
LESS THAN
INDEBTEDNESS RATINGS A- / A1 BBB+ / Xxx0 XXXXXXXX/Xxx0 XXX- / Xxx0 XXX- / Xxx0
-------------------- ------- ----------- ------------- ----------- -----------
PERCENTAGE .285% .380% .475% .800% 1.125%
(the "LIBOR Option"). Unless Borrower specifically requests a LIBOR Option,
interest will accrue at the Index. NOTICE: Under no circumstances will the
interest rate on this Note be more than the maximum rate allowed by applicable
law. Interest shall be due and payable on the maturity date of each individual
LIBOR Option period. No LIBOR Option term shall extend beyond July 7, 2009.
OVERNIGHT BORROWING INTEREST RATE OPTION. As an alternative to the Index,
Borrower may request an Advance of up to $100,000,000 of the Principal Amount of
this Note for Overnight Borrowing (except to the extent that the amount
requested or some portion thereof has already been borrowed and has not yet been
repaid) on which the applicable interest rate shall be at a per annum fixed rate
of interest based on the One Month LIBOR Rate in effect and reset each New York
Banking Day, adjusted for any reserve requirement and any subsequent costs
arising from a change in government regulation, plus a percentage dependent upon
Borrower's Indebtedness Rating at the time of the Overnight Borrowing as
follows:
LESS THAN
INDEBTEDNESS RATINGS A- / A1 BBB+ / Xxx0 XXX/Xxx0 XXX- / Xxx0 XXX- / Xxx0
-------------------- ------- ----------- -------- ----------- -----------
PERCENTAGE .285% .380% .475% .800% 1.125%
(the "Overnight Borrowing Interest Rate Option"). The One Month LIBOR Rate shall
be communicated to Lender by Dow, Xxxxx & Company through Page 3750 of its Dow,
Xxxxx Telerate, Inc. subsidiary, or a similar quote reporting service. Interest
accruing under the Overnight Borrowing Interest Rate Option shall be calculated
on the basis of a year of 360 days.
PROMISSORY NOTE Page 1
PREPAYMENT. Borrower may prepay any amounts due hereunder without premium EXCEPT
that Borrower shall reimburse Lender for and hold Lender harmless from any loss
or expense which Lender may sustain or incur as a consequence of the prepayment
of any Advance subject to the LIBOR Option on a day that is not the last day of
the relevant LIBOR term.
DEFAULT. Borrower will be in default upon the occurrence of any of the Events of
Default which are described in the Five Year Credit Agreement.
LENDER'S RIGHTS. Upon default, Lender may exercise any and all of the remedies
set forth in the Five Year Credit Agreement.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future. Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on this Note against any and all such
accounts, and, at Lender's option, to administratively freeze all such accounts
to allow Lender to protect Lender's charge and setoff rights provided on this
paragraph.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note, as well as directions for payment from Borrower's accounts, may be
requested in accordance with the Five Year Credit Agreement, and Advances
borrowed may be repaid and reborrowed. The unpaid principal balance owing on
this Note at any time may be evidenced by endorsements on this Note or by
Lender's internal records, including daily computer print-outs. Lender will have
no obligation to advance funds under this Note if: (a) Borrower is in default
under the terms of this Note or any agreement that Borrower has with Lender,
including the Five Year Credit Agreement; (b) Borrower ceases doing business or
is insolvent; (c) Borrower has applied funds provided pursuant to this Note for
purposes other than those authorized by Lender; or (e) Lender in good xxxxx
xxxxx itself insecure under this Note or any other agreement between Lender and
Borrower.
LATE CHARGE. If a payment is 15 days or more past due, Borrower will be charged
a late charge of 5% of the delinquent payment.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower, to the extent allowed by
law, waives presentment, demand for payment, protest and notice of dishonor.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
XXXXXXXXX'X, INC.
PROMISSORY NOTE Page 2
By:___________________________________
Title: _______________________________
LENDER:
U.S. BANK NATIONAL ASSOCIATION
By:___________________________________
Title: _______________________________
PROMISSORY NOTE Page 3
EXHIBIT F
FORM OF LEGAL OPINION
To: U.S. Bank National Association
Attn: Xx. Xxx Xxxxxx
National Corporate Banking
000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
RE: XXXXXXXXX'X, INC.
Ladies and Gentlemen:
I have acted as counsel for Xxxxxxxxx'x, Inc. (the "Company") in
connection with the Five Year Credit Agreement dated effective as of July 1,
2004 (the "Credit Agreement") between the Company and U.S. Bank National
Association ("U.S. Bank").
This opinion is being delivered to you pursuant to Section 7.1(d) of
the Credit Agreement. Capitalized terms used herein and not otherwise defined
herein shall have the same meanings herein as ascribed thereto in the Credit
Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of the Loan Documents and such other documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as I have deemed necessary
or advisable for purposes of this opinion.
In my examination I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, including endorsements, the
authority of all persons signing each of the documents on behalf of the parties
thereto (other than the Company), the authenticity of all documents submitted to
me as originals, the conformity to original documents of all documents submitted
to me as certified or photostatic copies, and the authenticity of the originals
of such copies. As to any facts material to this opinion which I did not
independently establish or verity, I have relied upon oral or written statements
and representations of officers and other representatives of the Company and
others, and factual representations contained in the Loan Documents.
I am a member of the Bar of the State of Missouri, and I express no
opinion as to the laws of any jurisdiction, or the effect of any such laws on
the opinions herein stated, other than (i) the General Corporation Law of the
State of Delaware (the "Delaware Statute") with respect to the opinions set
forth in paragraph 1 hereof, and (ii) the federal laws of the United States of
America to the extent specifically referred to herein.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the Delaware Statutes, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The Company is qualified as
a foreign corporation and is in good standing in the State of Idaho.
2. The execution, delivery and performance by the Company of the Loan
Documents are within the Company's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the
Company and constitute valid and binding agreements of the Company, in each case
enforceable in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
4. Except as disclosed in the Company's most recent Form 10-K or other
information provided to U.S. Bank pursuant to the Credit Agreement, there is no
action, suit or proceeding pending against, or to the best of my knowledge
threatened against or affecting, the Company or any of its subsidiaries before
any court or arbitrator or any governmental body, agency or official, in which
there is a reasonable possibility of an adverse decision which could materially
adversely effect the business, consolidated financial position or consolidated
reports of operations of the Company and its Consolidated Subsidiaries,
considered as a whole or which in any manner draws into question the validity of
the Loan Documents.
5. The Company is not an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
This opinion is being furnished only to you solely for your benefit in
connection with the Credit Agreement and is not to be used, circulated, quoted,
referred to or relied upon by any other person or for any other purpose without
my prior express written consent; provided, U.S. Bank may deliver a copy to its
legal counsel in connection with the Credit Agreement, to any prospective
Assignee or Participant and its legal counsel, any Assignee or Participant shall
be entitled to rely hereon, it being understood that this opinion is rendered
only as of the date hereof.
Very truly yours,
