EXHIBIT 4.3
CREDIT AGREEMENT
Dated as of November 20, 2003
among
NIKE, INC.
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITICORP USA, INC.,
as Syndication Agent,
HSBC BANK USA, THE BANK OF TOKYO MITSUBISHI, LTD. and
DEUTSCHE BANK AG NEW YORK BRANCH
as Co-Documentation Agents,
and
THE BANKS PARTY HERETO
___________________ _____________________ ______________________
Co-Lead Arrangers and Co-Book Managers:
BANC OF AMERICA SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS INC.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND OTHER INTERPRETIVE PROVISIONS...................1
1.1. Defined Terms......................................................1
1.2. Other Interpretive Provisions.....................................14
1.3. References to Agreements and Laws.................................14
ARTICLE II THE FACILITY...................................................14
2.1. The Facility......................................................14
2.2. Ratable Advances..................................................15
2.3. Competitive Bid Advances..........................................17
2.4. Fees..............................................................20
2.5. General Facility Terms............................................21
ARTICLE III TAXES, CHANGE IN CIRCUMSTANCES...................................25
3.1. Taxes.............................................................25
3.2. Yield Protection..................................................26
3.3. Availability of Rate Options......................................26
3.4. Funding Indemnification...........................................27
3.5. Regulation D Compensation.........................................27
3.6. Bank Statements; Survival of Indemnity............................27
3.7. Removal of Banks..................................................28
ARTICLE IV CONDITIONS PRECEDENT.............................................28
4.1. Closing...........................................................28
4.2. Each Advance......................................................29
ARTICLE V REPRESENTATIONS AND WARRANTIES...................................29
5.1. Corporate Existence...............................................29
5.2. Authorization and Validity........................................29
5.3. No Conflict; Government Consent...................................30
5.4. Financial Statements..............................................30
5.5. Taxes.............................................................30
5.6. Litigation and Contingent Obligations.............................30
5.7. Subsidiaries......................................................31
5.8. ERISA.............................................................31
5.9. Accuracy of Information...........................................31
5.10. Regulation U......................................................31
5.11. Material Agreements...............................................31
5.12. Compliance With Laws..............................................31
5.13. Ownership of Properties...........................................31
5.14. Post-Retirement Benefits..........................................31
5.15. Environmental and Safety and Health Matters.......................32
ARTICLE VI COVENANTS......................................................32
6.1. Financial Reporting...............................................32
6.2. Use of Proceeds...................................................33
6.3. Notice of Default.................................................33
6.4. Preservation of Existence; Conduct of Business....................34
6.5. Taxes.............................................................34
6.6. Insurance.........................................................34
6.7. Compliance with Laws..............................................34
6.8. Maintenance of Properties; Trademarks and Franchises..............34
6.9. Inspection........................................................35
6.10. Dividends.........................................................35
6.11. Merger............................................................35
6.12. Sale of Assets....................................................35
6.13. Sale and Leaseback................................................35
6.14. Acquisitions......................................................36
6.15. Liens.............................................................36
6.16. Affiliates........................................................37
6.17. Capitalization Ratio..............................................37
6.18. Notice of Rating Change...........................................37
ARTICLE VII DEFAULTS.......................................................38
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................40
8.1. Acceleration......................................................40
8.2. Amendments and Waivers............................................40
8.3. Preservation of Rights............................................41
ARTICLE IX NOTICES........................................................41
9.1. Giving Notice.....................................................41
9.2. Change of Address.................................................41
ARTICLE X GENERAL PROVISIONS.............................................42
10.1. Survival of Representations.......................................42
10.2. Governmental Regulation...........................................42
10.3. Taxes.............................................................42
10.4. Headings..........................................................42
10.5. Entire Agreement..................................................42
10.6. Several Obligations...............................................42
10.7. Expenses; Indemnification.........................................42
10.8. Numbers of Documents..............................................44
10.9. Accounting........................................................44
10.10. Severability of Provisions........................................44
10.11. Nonliability of Banks.............................................44
10.12. Confidentiality...................................................44
10.13. CHOICE OF LAW.....................................................45
10.14. CONSENT TO JURISDICTION...........................................45
10.15. WAIVER OF JURY TRIAL..............................................45
10.16. OREGON LEGAL NOTICE...............................................46
10.17. Counterparts......................................................46
ARTICLE XI THE ADMINISTRATIVE AGENT.......................................46
11.1. Appointment and Authorization of Administrative Agent.............46
11.2. Delegation of Duties..............................................46
11.3. Liability of Administrative Agent.................................46
11.4. Reliance by Administrative Agent..................................47
11.5. Notice of Default.................................................47
11.6. Credit Decision; Disclosure of Information by Administrative Agent48
11.7. Indemnification of Administrative Agent...........................48
11.8. Administrative Agent in Individual Capacity.......................49
11.9. Successor Administrative Agent....................................49
11.10. Foreign Banks.....................................................50
11.11. Administrative Agent May File Proofs of Claim.....................50
11.12. Other Agents; Co-Lead Arrangers...................................51
ARTICLE XII SETOFF; RATABLE PAYMENTS.......................................51
12.1. Setoff............................................................51
12.2. Ratable Payments..................................................52
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..............52
13.1. Successors and Assigns............................................52
EXHIBITS
________
EXHIBIT A-1 Ratable Note
EXHIBIT A-2 Competitive Bid Note
EXHIBIT B Competitive Bid Quote Request
EXHIBIT C Invitation for Competitive Bid Quotes
EXHIBIT D Competitive Bid Quotes
EXHIBIT E Borrower Counsel Opinion
EXHIBIT F Ratable Borrowing Notice
EXHIBIT G Notice of Conversion/Continuation
EXHIBIT H Compliance Certificate
EXHIBIT I Assignment and Assumption
SCHEDULES
___________
Schedule 1 Subsidiaries
Schedule 2 Liens
Schedule 3 Commitments and Pro Rata Shares
Schedule 4 Eurodollar and Domestic Lending Offices
CREDIT AGREEMENT
This Credit Agreement, dated as of November 20, 2003, is among
NIKE, Inc., the Banks and Bank of America, N.A., as Administrative
Agent, Citicorp USA, Inc., as Syndication Agent, and The Bank of Tokyo
Mitsubishi, Ltd., Deutsche Bank AG New York Branch, and HSBC Bank USA,
as Co-Documentation Agents. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER INTERPRETIVE PROVISIONS
_____________________________________________
1.1. Defined Terms. As used in this Agreement, the following
_____________
terms shall have the meanings set forth below:
"Absolute Rate" means, with respect to an Absolute Rate Loan made
_____________
by a given Bank for the relevant Absolute Rate Interest Period, the
rate of interest per annum (rounded to the nearest 1/1000 of 1%)
offered by such Bank and accepted by the Borrower.
"Absolute Rate Advance" means a borrowing hereunder consisting of
_____________________
the aggregate amount of the several Absolute Rate Loans made by some or
all of the Banks to the Borrower at the same time and for the same
Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid
_____________________
Quotes setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute
Rate Advance, a period of not less than 7 and not more than 183 days
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall
end on the next succeeding Business Day.
"Absolute Rate Loan" means a Competitive Bid Loan which bears
__________________
interest at the Absolute Rate.
"Acquisition" means any material transaction, or any series of
___________
related transactions, consummated after the date of this Agreement, by
which the Borrower or any of the Subsidiaries (i) acquires any going
business or all or substantially all of the assets of any firm,
corporation or division thereof, whether through purchase of assets,
merger or otherwise, or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the
election of directors (other than securities having such power only by
reason of the happening of a contingency).
"Administrative Agent" means Bank of America, N.A. in its capacity
____________________
as administrative agent for the Banks pursuant to Article XI, and not
in its individual capacity as a Bank, and any successor Administrative
Agent appointed pursuant to Article XI.
"Administrative Agent - Related Persons" means the Administrative
____________________
Agent, together with its Affiliates (including, in the case of Bank of
America, in its capacity as the Administrative Agent and in the case of
Banc of America Securities LLC, in its capacity as the Co-Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"Administrative Agent's Office" means the Administrative Agent's
_____________________________
address and, as appropriate, account as set forth on Schedule 4, or
such other address or account as the Administrative Agent may from time
to time notify to the Borrower and the Banks.
"Advance" means a borrowing hereunder consisting of the aggregate
_______
amount of the several Loans made by some or all of the Banks to the
Borrower on the same Borrowing Date, at the same Rate Option (or on the
same interest basis in the case of Competitive Bid Advances) and, where
applicable, for the same Interest Period and includes a Competitive Bid
Advance.
"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.
"Agreement" means this Credit Agreement as amended, modified or
_________
supplemented from time to time.
"Agreement Accounting Principles" means generally accepted
_______________________________
principles of accounting as in effect from time to time, applied in a
manner consistent with that used in preparing the financial statements
referred to in Section 5.4.
"Applicable Facility Fee Rate" means, on any date and with respect
____________________________
to each Commitment whether used or unused, the applicable fee (in basis
points) set forth below based on the Applicable Rating Level on such
date (provided, however, that on the Effective Date the Applicable
Rating Level shall be deemed to be Level III):
Applicable Rating Level Facility Fee Rate (in basis
_______________________ ___________________________
points)
_______
Level I 6.0
Level II 7.0
Level III 8.0
Xxxxx XX 00.0
Xxxxx X 00.0
Xxxxx XX 00.0
"Applicable Margin" means, on any date and with respect to each
_________________
Eurodollar Ratable Loan, the applicable margin set forth below based on
the Applicable Rating Level on such date (provided, however, that on
the Effective Date the Applicable Rating Level shall be deemed to be
Level III):
Applicable Rating LevelApplicable Margin (in
_________________ __________________________
basis points)
_____________
Xxxxx X 00.0
Xxxxx XX 00.0
Xxxxx XXX 22.0
Xxxxx XX 00.0
Xxxxx X 00.0
Xxxxx XX 00.0
"Applicable Rating Level" shall mean and be determined by the
_______________________
ratings issued from time to time by S&P and Xxxxx'x (or S&P or Xxxxx'x,
if ratings shall be available from only one of such Rating Agencies) in
respect of the Borrower's long-term, senior unsecured, non-credit-
enhanced debt in accordance with the following (provided, however, that
on the Effective Date the Applicable Rating Level shall be deemed to be
Level III):
Rating Level S&P Xxxxx'x
____________ ___ _______
Level I More favorable than A+ More favorable than A1
Level II A+ A1
Level III X X0
Xxxxx XX X- X0
Xxxxx V BBB+ Baa1
Level VI Less than BBB+ or not Less than Baa1 or not
rated rated
For purposes of the foregoing, (a) if ratings are available from
both S&P and Xxxxx'x, and the ratings available from such Rating
Agencies do not correspond to the same rating level on the chart above,
then (1) if such rating levels differ by only one level on the chart
above, then the Applicable Rating Level shall correspond to the higher
of the two ratings, and (2) if such rating levels differ by more than
one level on the chart above, then the Applicable Rating Level shall
correspond to that rating which is one rating higher than the lower of
the two ratings; (b) if determinative ratings shall change (other than
as a result of a change in the rating system used by any applicable
Rating Agency) such that a change in the Applicable Rating Level would
result, such change shall effect a change in the Applicable Rating
Level as of the day on which the Administrative Agent receives notice
of such change in determinative ratings (such day, a "Change Day"), and
any change in the Applicable Margin shall take effect commencing on
such Change Day and ending on the date immediately preceding the next
Change Day; (c) if the rating system of any of the Rating Agencies
shall change prior to the date all Obligations hereunder have been paid
and the Commitments cancelled, the Borrower and the Majority Banks
shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system, and
pending such amendment, if no Applicable Rating Level is otherwise
determinable based upon the foregoing, the most recent Applicable
Rating Level in effect shall apply; (d) if the Borrower shall fail to
give notice to the Administrative Agent of any change in rating by any
Rating Agency in respect of the Borrower's long-term, senior unsecured
debt on the date required by Section 6.18, the Applicable Rating Level
shall be deemed to be Level VI for the period from the date such notice
was required to be delivered to the date such notice is received by the
Administrative Agent; and (e) upon the occurrence of and during the
existence of a Default, the Applicable Rating Level shall be deemed to
be Level VI.
"Applicable Utilization Fee Rate" means, on any date, the
_______________________________
applicable fee (in basis points) set forth below based on the
Applicable Rating Level on such date:
Applicable Rating Level Applicable Utilization Fee
_______________________ __________________________
Rate (in basis points)
______________________
Level I 5.0
Level II 5.0
Level III 10.0
Xxxxx XX 00.0
Xxxxx X 00.0
Xxxxx XX 00.0
"Approved Fund" has the meaning assigned to such term in Section
_____________
13.1(g).
"Assignment and Assumption" means an Assignment and Assumption
_________________________
substantially in the form of Exhibit I.
"Attorney Costs" means and includes all fees, expenses and
______________
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
expenses and disbursements of internal counsel.
"Bank of America" means Bank of America, N.A., and its successors.
_______________
"Banks" means the financial institutions acting as lenders
_____
hereunder, listed on the signature pages of this Agreement and their
respective successors and assigns.
"Base Rate" means for any day a fluctuating rate per annum equal
_________
to the higher of (a) the Federal Funds Rate plus 1/2 of 1%, and (b) the
rate of interest in effect for such day as publicly announced from time
to time by Bank of America as its "prime rate." The "prime rate" is a
rate set by Bank of America based upon various factors including Bank
of America's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any
change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement
of such change.
"Borrower" means NIKE, Inc., an Oregon corporation.
________
"Borrowing Date" means a date on which an Advance is made
______________
hereunder.
"Business Day" means (i) with respect to any borrowing, payment or
____________
rate selection of Eurodollar Ratable Advances or Eurodollar Bid Rate
Advances, a day other than Saturday or Sunday on which banks are open
for business in San Francisco and New York City and on which dealings
in United States dollars are carried on in the London interbank market,
and (ii) for all other purposes, a day other than Saturday or Sunday on
which banks are open for business in San Francisco and New York City.
"Capitalization Ratio" means, with respect to the Borrower and its
____________________
Subsidiaries on a consolidated basis, the ratio of (i) Indebtedness to
(ii) the sum of (x) Indebtedness and (y) net worth as determined in
accordance with generally accepted accounting principles.
"Capitalized Lease" of a Person means any lease of property by
__________________
such Person as lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with Agreement Accounting
Principles.
"Capitalized Lease Obligations" of a Person means the amount of
_____________________________
obligations of such Person under Capitalized Leases which would be
shown as a liability on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
"Co-Arrangers" means Banc of America Securities LLC and Citigroup
____________
Global Markets Inc., each in its capacity as a co-lead arranger and a
co-book manager.
"Code" means the Internal Revenue Code of 1986.
____
"Co-Documentation Agents" means HSBC Bank USA, The Bank of Tokyo
_______________________
Mitsubishi, Ltd., and Deutsche Bank AG New York Branch, each in its
capacity as a co-documentation agent and not in its individual capacity
as a Bank.
"Commitment" means for each Bank, the obligation of the Bank to
__________
make Loans not exceeding the amount set forth opposite the Bank's name
in Schedule 3 hereof or in the Assignment and Assumption pursuant to
which such Bank becomes a party hereto, as applicable, as such amount
may be modified from time to time pursuant to the terms of this
Agreement and any Assignment and Assumption (collectively, the
"Commitments").
"Competitive Bid Advance" means a borrowing hereunder prior to the
_______________________
Termination Date consisting of the aggregate amount of the several
Competitive Bid Loans made by some or all of the Banks to the Borrower
at the same time and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
________________________________
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an
____________________
Absolute Rate Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the
______________________
applicable Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan,
expressed as a percentage (rounded to the nearest 1/1000 of 1%) to be
added or subtracted from such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially
____________________
the form of Exhibit A-2 hereto, with appropriate insertions, duly
executed and delivered to the Administrative Agent by the Borrower for
the account of a Bank and payable to the order of such Bank, including
any amendment, modification, renewal or replacement of such promissory
note.
"Competitive Bid Quote" means a Competitive Bid Quote
_____________________
substantially in the form of Exhibit D hereto completed and delivered
by a Bank to the Administrative Agent in accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote
_____________________________
Request substantially in the form of Exhibit B hereto completed and
delivered by the Borrower to the Administrative Agent in accordance
with Section 2.3.2.
"Controlled Group" means all members of a controlled group of
________________
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414(b) or
414(c) of the Code.
"Conversion/Continuation Date" means any date on which, under
____________________________
Section 2.2.4, the Borrower (a) converts an Advance bearing interest
based on a Rate Option to an Advance bearing interest based on another
Rate Option, or (b) continues an Advance bearing interest based on the
same Rate Option, but with a new Interest Period.
"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 an event described in Article VII.
_______
"Dollars" and "$" mean lawful money of the United States of
_______ _
America.
"Effective Date" means the date on which all conditions set forth
______________
in Section 4.1 are satisfied or waived by the Administrative Agent and
the Banks (or, in the case of Section 4.1(k), waived by the Person
entitled to receive the applicable payment), provided such date shall
not be later than November 20, 2003.
"Eligible Assignee" has the meaning assigned to such term in
_________________
Section 13.1(g).
"Environmental Laws" means the Resource Conservation and Recovery
__________________
Act of 1987, the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called "Superfund" or "Superlien" law, the Toxic
Substances Control Act, and any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning,
any hazardous materials or other hazardous or toxic substance, as now
or at any time hereafter in effect.
"ERISA" means the Employee Retirement Income Security Act of 1974
_____
and any regulations issued pursuant thereto.
"Eurodollar Auction" means a solicitation of Competitive Bid
__________________
Quotes setting forth Eurodollar Bid Rates pursuant to Section 2.3.
"Eurodollar Base Rate" means for any Interest Period with respect
____________________
to any Eurodollar Ratable Advance or a Eurodollar Bid Rate Advance:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a)
does not appear on such page or service or such page or service shall
not be available, the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Ratable Advance
or Eurodollar Bid Rate Advance being made (or that would be made by
Bank of America if such Advance were a Eurodollar Ratable Advance),
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London
Branch to major banks in the interbank eurodollar market at their
request at approximately 4:00 p.m. (London time) two Business Days
prior to the first day of such Interest Period.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate
___________________
Loan made by a given Bank for the relevant Eurodollar Interest Period,
the sum of (i) the Eurodollar Base Rate and (ii) the Competitive Bid
Margin offered by such Bank and accepted by the Borrower.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance
___________________________
which bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at
________________________
the Eurodollar Bid Rate.
"Eurodollar Ratable Advance" means an Advance which bears interest
__________________________
at a Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Ratable Loan" means a Loan which bears interest at a
_______________________
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Interest Period" means, with respect to a Eurodollar
__________________________
Ratable Advance or a Eurodollar Bid Rate Advance, a period of one, two,
three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Eurodollar Interest Period
shall end on (but exclude) the day which corresponds numerically to
such date one, two, three or six months thereafter, provided, however,
that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Eurodollar Interest
Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If a Eurodollar Interest Period would
otherwise end on a day which is not a Business Day, such Eurodollar
Interest Period shall end on the next succeeding Business Day,
provided, however, that if said next succeeding Business Day falls in a
new month, such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"Eurodollar Rate" means, with respect to a Eurodollar Ratable
_______________
Advance for the relevant Eurodollar Interest Period, the sum of (i) the
Eurodollar Base Rate applicable to that Eurodollar Interest Period plus
(ii) the Applicable Margin.
"Existing Credit Agreement" means that certain Credit Agreement
_________________________
dated as of November 17, 2000, as amended by that certain First
Amendment to Credit Agreement dated as of November 16, 2001 and as
further amended by that Second Amendment to Credit Agreement dated as
of November 15, 2002 among the Borrower, Bank of America, as Agent, and
the other financial institutions party thereto.
"Federal Funds Rate" means, for any day, the rate per annum equal
__________________
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transactions as determined by the
Administrative Agent.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or
__________
the Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a
__________________
Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed
_______________
Rate.
"Floating Rate" means, for any day, a rate per annum equal to the
_____________
Base Rate.
"Floating Rate Advance" means an Advance which bears interest at
_____________________
the Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the
__________________
Floating Rate.
"Fund" has the meaning assigned to that term in Section 13.1(g).
____
"Further Taxes" means any and all present or future taxes, levies,
_____________
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to Section 3.1.
"Governmental Authority" means any nation or government, any state
_______________________
or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal,
central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or 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.
"Indebtedness" of a Person means such Person's (i) obligations for
____________
borrowed money, (ii) obligations representing the deferred purchase
price of property or services other than accounts payable arising in
the ordinary course of such Person's business payable on terms
customary in the trade, (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from
property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease Obligations, (vi) net liabilities
under interest rate swap, foreign exchange or cap agreements, and (vii)
liability under any arrangement by which such Person assumes,
guarantees, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the
obligation or liability of any other Person, or agrees to maintain the
net worth or working capital or other financial condition of any other
Person.
"Indemnified Liabilities" has the meaning specified in Section
_______________________
10.7.
"Interest Period" means a Eurodollar Interest Period or an
_______________
Absolute Rate Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
_____________________________________
Competitive Bid Quotes substantially in the form of Exhibit C hereto,
completed and delivered by the Administrative Agent to the Banks in
accordance with Section 2.3.3.
"IRS" means the Internal Revenue Service of the United States
___
Treasury.
"Knight Family" means, collectively, Xxxxxx X. Xxxxxx, and his
_____________
wife, children, parents and siblings, and any trust, corporation or
partnership with respect to his assets established for estate planning
purposes.
"Laws" means, collectively, all international, foreign, Federal,
____
state and local statutes, treaties, rules, guidelines, 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, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case whether or
not having the force of law.
"Lending Office" means, as to any Bank, the office or offices of
______________
such Bank described as such on Schedule 4, or such other office or
offices as a Bank may from time to time notify the Borrower and the
Administrative Agent.
"Lien" means any security interest, mortgage, pledge, lien
____
(statutory or other), claim, charge, encumbrance, title retention
agreement, lessor's interest under a Capitalized Lease or analogous
instrument, in, of or on any Person's assets or properties in favor of
any other Person.
"Loan" means, with respect to a Bank, such Bank's portion, if any,
____
of any Advance.
"Loan Documents" means this Agreement and the Notes.
______________
"Majority Banks" means Banks in the aggregate having more than 50%
______________
of the combined Commitments at such time of all Banks or, if the
Commitments have been terminated, Banks in the aggregate holding more
than 50% of the aggregate unpaid principal amount of the outstanding
Loans.
"Material Adverse Effect" means with respect to any matter that
_______________________
such matter (i) could reasonably be expected to materially and
adversely affect the business, properties, condition (financial or
otherwise), or results of operations of the Borrower or the Borrower
and its Subsidiaries taken as a whole, or (ii) has been brought by or
before any court or arbitrator or any governmental body, agency or
official, and draws into question the validity or enforceability of any
material provision of any Loan Document against any obligor party
thereto.
"Material Subsidiary" means, at any time, any Subsidiary having at
___________________
such time either (i) total (gross) revenues for the preceding four
fiscal quarter period in excess of 10% of the Borrower's consolidated
total (gross) revenues for such period, or (ii) total assets, as of the
last day of the preceding fiscal quarter, having a net book value in
excess of 10% of the net book value of the Borrower's consolidated
total assets on such date, in each case, based upon the Borrower's most
recent annual or quarterly financial statements delivered to the
Administrative Agent under Section 6.1.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
_______
thereto that is a nationally-recognized rating agency.
"Multiemployer Plan" means a Plan maintained pursuant to a
__________________
collective bargaining agreement or any other arrangement to which the
Borrower or any member of the Controlled Group is a party to which more
than one employer is obligated to make contributions.
"Notes" means, collectively, the Competitive Bid Notes and the
_____
Ratable Notes; and "Note" means any one of the Notes.
"Notice of Conversion/Continuation" is defined in Section 2.2.4.
_________________________________
"Obligations" means all unpaid principal of and accrued and unpaid
___________
interest on the Loans, all accrued and unpaid fees and all other
reimbursements, indemnities or other obligations of the Borrower to the
Banks or to any Bank, the Administrative Agent or any indemnified party
hereunder arising under the Loan Documents.
"Occupational Safety and Health Law" means the Occupational Safety
__________________________________
and Health Act of 1970 and any other Law regulating, relating to or
imposing liability or standards of conduct concerning employee health
and/or safety.
"Other Taxes" means any present or future stamp, court or
___________
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents,
excluding, in the case of each Bank and the Administrative Agent,
respectively, taxes imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of
which such Bank or the Administrative Agent, as the case may be, is
organized or maintains a lending office.
"Participant" is defined in Section 13.1(d).
___________
"Payment Date" means the last Business Day of each February, May,
____________
August and November.
"PBGC" means the Pension Benefit Guaranty Corporation and its
____
successors and assigns.
"Person" means any individual, trustee, corporation, general
______
partnership, limited partnership, limited liability company, joint
stock company, trust, unincorporated organization, bank, business
association, firm, joint venture or Governmental Authority.
"Plan" means an employee pension benefit plan which is covered by
____
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which the Borrower or any member of the
Controlled Group may have any liability.
"Ratable Advance" means a borrowing hereunder consisting of the
_______________
aggregate amount of the several Ratable Loans made by the Banks to the
Borrower at the same time, at the same Rate Option and for the same
Interest Period.
"Ratable Borrowing Notice" is defined in Section 2.2.3.
________________________
"Ratable Loan" means a Loan made by a Bank to the Borrower
____________
pursuant to Section 2.2.1 hereof.
"Ratable Note" means a promissory note in substantially the form
____________
of Exhibit A-1 hereto, duly executed and delivered to the
Administrative Agent by the Borrower for the account of a Bank and
payable to the order of such Bank in the amount of its Commitment,
including any amendment, modification, renewal or replacement of such
promissory note.
"Rate Option" means the Eurodollar Rate or the Floating Rate.
___________
"Rating Agency" means S&P and Moody's.
_____________
"Regulation D" means Regulation D of the Board of Governors of the
____________
Federal Reserve System from time to time in effect and shall include
any successor or other regulation or official interpretation of said
Board of Governors relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulations U and X" means Regulations U and X of the Board of
___________________
Governors of the Federal Reserve System from time to time in effect and
shall include any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"Reportable Event" means any of the events set forth in Section
________________
4043(c) of ERISA, other than events for which the 30-day notice period
has been waived.
"Reserve Requirement" means, with respect to a Eurodollar Interest
___________________
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under
Regulation D on eurocurrency liabilities (as defined in Regulation D).
The Reserve Requirement shall be adjusted automatically on and as of
the effective date of any change in the applicable reserve requirement.
"S&P" means Standard & Poor's Ratings Services, a division of The
___
XxXxxx-Xxxx Companies, Inc. and any successor thereto that is a
nationally-recognized rating agency.
"Single Employer Plan" means a Plan maintained by the Borrower or
____________________
any member of the Controlled Group for employees of the Borrower or any
member of the Controlled Group.
"Subsidiary" of a Person means a corporation, partnership, joint
__________
venture, limited liability company or other business entity of which a
majority of the shares of securities or other interests having ordinary
voting power for the election of directors or other governing body
(other than securities or interests having such power only by reason of
the happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise specified, all references herein to a "Subsidiary" or
to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"Substantial Portion" is defined in Section 6.12.
___________________
"Syndication Agent" means Citicorp USA, Inc. in its capacity as
_________________
syndication agent and not in its individual capacity as a Bank.
"Taxes" means any and all present or future taxes, levies,
_____
assessments, imposts, duties deductions, fees withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Bank and the Administrative Agent, respectively, taxes
imposed on or measured by its net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or the
Administrative Agent, as the case may be, is organized or maintains a
lending office.
"Termination Date" means November 20, 2008 unless the Commitments
________________
or this Agreement are earlier cancelled or terminated pursuant to the
terms hereof.
"Unfriendly Acquisition" means the Acquisition of a corporation,
______________________
limited liability company or similar business entity if the Acquisition
has not been approved by the board of directors (or comparable
governing body) of such entity.
"Unfunded Liabilities" means, (i) in the case of Single Employer
____________________
Plans, the amount (if any) by which the present value of all vested
nonforfeitable benefits under such Plan exceeds the fair market value
of all Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plans, and (ii) in the case of
Multiemployer Plans, the withdrawal liability that would be incurred by
the Controlled Group if all members of the Controlled Group completely
withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which but for the lapse of time
_________________
or the giving of notice, or both, would constitute a Default.
1.2. Other Interpretive Provisions.
_____________________________
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of
______ _________
similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article,
Section, Exhibit and Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not
_________
limitation.
(iv) The term "documents" includes any and all
_________
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced.
(c) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
____ ________
including;" the words "to" and "until" each mean "to but excluding;"
_________ __ _____ _________________
and the word "through" means "to and including."
_______ ________________
1.3. References to Agreements and Laws. Unless otherwise
_________________________________
expressly provided herein, (a) references to agreements (including the
Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b)
references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing, reforming
or interpreting such Law.
ARTICLE II
THE FACILITY
____________
2.1. The Facility.
____________
From the Effective Date until the Termination Date, each
Bank severally agrees to make Ratable Loans to the Borrower from time
to time in amounts not to exceed in the aggregate at any one time
outstanding, the amount of its Commitment.
(i) Each Bank may, in its sole discretion and not
subject to the amount of its Commitment, make bids to make Competitive
Bid Loans to the Borrower in accordance with Section 2.3.
(ii) In no event may the aggregate principal amount of
all outstanding Advances (including both the Ratable Advances and the
Competitive Bid Advances) exceed the Commitments.
(iii) Subject to the terms of this Agreement, the
Borrower may borrow, repay and re-borrow within the limits of each
Bank's Commitment at any time prior to the Termination Date.
2.2. Ratable Advances.
________________
2.2.1. General.
_______
Each Ratable Advance hereunder shall consist of
borrowings made from the several Banks ratably in proportion to the
amounts of their respective Commitments. For so long as any
Competitive Bid Advances are outstanding, the aggregate outstanding
amount of Competitive Bid Advances shall reduce each Bank's Commitment
ratably in the proportion such Bank's Commitment bears to the
Commitments regardless of which Bank or Banks make such Competitive Bid
Advances. No Bank shall be obligated to make a Loan hereunder if the
aggregate principal amount of such Bank's Ratable Loans outstanding
would exceed its Commitment. Upon the request of any Bank made
through the Administrative Agent, the Borrower shall execute and
deliver to such Bank (through the Administrative Agent) a Ratable Note,
which shall evidence such Bank's Ratable Advances.
2.2.2. Ratable Advance Rate Options. The Ratable Advances may
____________________________
be Floating Rate Advances or Eurodollar Ratable Advances, or a
combination thereof, selected by the Borrower in accordance with
Section 2.2.3, and as converted or continued in accordance with Section
2.2.4; provided that no Advance may mature after the Termination Date.
2.2.3. Method of Selecting Rate Options and Interest Periods
_____________________________________________________
for Ratable Advances. The Borrower shall select the Rate Option and,
____________________
if applicable, Interest Period applicable to each Ratable Advance from
time to time. The Borrower shall give the Administrative Agent
irrevocable notice in the form attached hereto as Exhibit F (a "Ratable
_________ _______
Borrowing Notice") not later than 8:00 a.m. (San Francisco time) (a) on
________________
the Business Day preceding the Borrowing Date of each Floating Rate
Advance, and (b) three Business Days before the Borrowing Date for each
Eurodollar Ratable Advance. Notwithstanding the foregoing, a Ratable
Borrowing Notice for a Floating Rate Advance may be given not later
than 15 minutes after the time which the Borrower is required to reject
one or more bids offered in connection with an Absolute Rate Auction
pursuant to Section 2.3.6 and a Ratable Borrowing Notice for a
Eurodollar Ratable Advance may be given not later than 15 minutes after
the time the Borrower is required to reject one or more bids offered in
connection with a Eurodollar Auction pursuant to Section 2.3.6. A
Ratable Borrowing Notice shall specify:
(a) the Borrowing Date, which shall be a Business Day, of
such Ratable Advance;
(b) the aggregate amount of such Ratable Advance;
(c) the Rate Option selected for such Ratable Advance; and
(d) in the case of each Fixed Rate Advance, the Interest
Period applicable thereto (which may not end after the Termination
Date).
2.2.4. Conversion and Continuation Elections.
_____________________________________
(a) The Borrower may, upon irrevocable written notice to
the Administrative Agent in accordance with subsection 2.2.4(b): (i)
elect, as of any Business Day, in the case of a Floating Rate Advance,
or as of the last day of the applicable Interest Period, in the case of
a Eurodollar Ratable Advance, to convert such Advance into an Advance
bearing interest based on another Rate Option; or (ii) elect, as of
the last day of the applicable Interest Period, to continue a
Eurodollar Ratable Advance or Floating Rate Advance having an Interest
Period expiring on such day; except, that during the existence of a
Default or Unmatured Default, the Borrower may not elect to have any
Advance converted into or continued as a Eurodollar Ratable Advance
unless the Majority Banks consent thereto. All conversions and
continuations of Advances shall be made ratably according to the
respective outstanding principal amounts of the Loans with respect to
which the notice was given held by each Bank.
(b) The Borrower shall deliver a notice of
conversion/continuation in the form attached hereto as Exhibit G (a
_________
"Notice of Conversion/Continuation") to be received by the
_________________________________
Administrative Agent not later than 8:00 a.m. (San Francisco time) (i)
on the Business Day preceding the Conversion/Continuation Date if the
Advance is to be converted into or continued as a Floating Rate
Advance, and (ii) three Business Days before the
Conversion/Continuation Date if the Advance is to be converted into or
continued as a Eurodollar Ratable Advance; specifying:
(i) the Conversion/Continuation Date, which shall be
a Business Day, of such Ratable Advance;
(ii) the aggregate amount of such Ratable Advance to
be converted or continued;
(iii) the Rate Option for such Ratable Advance
resulting from the conversion or continuation; and
(iv) in the case of each Fixed Rate Advance, the
Interest Period applicable thereto (which may not end after the
Termination Date).
(c) If upon the expiration of any Interest Period
applicable to a Eurodollar Ratable Advance, the Borrower has failed to
select timely a new Interest Period to be applicable to such Advance,
or if any Default or Unmatured Default then exists, the Borrower shall
be deemed to have elected to convert such Advance into a Floating Rate
Advance effective as of the expiration date of such Interest Period.
2.3. Competitive Bid Advances.
________________________
2.3.1. Competitive Bid Option. In addition to Ratable Advances
______________________
pursuant to Section 2.2, but subject to the terms and conditions of
this Agreement (including any limitations as to the maximum aggregate
principal amount of all outstanding Advances), the Borrower may, as set
forth in this Section 2.3, request the Banks, prior to the Termination
Date, to make offers to make Competitive Bid Advances to the Borrower.
Each Bank may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.3. Upon the request
of any Bank made through the Administrative Agent, the Borrower shall
execute and deliver to such Bank (through the Administrative Agent) a
Competitive Bid Note, which shall evidence such Bank's Competitive Bid
Advances.
2.3.2. Competitive Bid Quote Request. When the Borrower wishes to
_____________________________
request offers to make Competitive Bid Loans under this Section 2.3, it
shall transmit to the Administrative Agent by telecopy a Competitive
Bid Quote Request substantially in the form of Exhibit B hereto so as
to be received no later than (i) 8:00 a.m. (San Francisco time) at
least four Business Days prior to the Borrowing Date proposed therein,
in the case of a Eurodollar Auction, or (ii) 8:00 a.m. (San Francisco
time) at least one Business Day prior to the Borrowing Date proposed
therein, in the case of an Absolute Rate Auction specifying:
(a) the proposed Borrowing Date, which shall be a
Business Day, for the proposed Competitive Bid Advance;
(b) the aggregate principal amount of such Competitive
Bid Advance;
(c) whether the Competitive Bid Quotes requested are to
set forth a Eurodollar Bid Rate or an Absolute Rate, or both; and
(d) the Interest Period applicable thereto (which may
not end after the Termination Date).
The Borrower may request offers to make Competitive Bid Loans for
more than one Interest Period in a single Competitive Bid Quote
Request. No Competitive Bid Quote Request shall be given within 5
Business Days (or, in either case upon reasonable prior notice to the
Banks, such other number of days as the Borrower and the Administrative
Agent may agree) of any other Competitive Bid Quote Request. Each
Competitive Bid Quote Request shall be in Dollars in a minimum amount
of $5,000,000 (and in integral multiples of $1,000,000 in excess
thereof). A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit B hereto shall be rejected, and
_________
the Administrative Agent shall promptly notify the Borrower of such
rejection by telecopy.
2.3.3. Invitation for Competitive Bid Quotes. Promptly and in
_____________________________________
any event before the close of business on the same Business Day of
receipt of a Competitive Bid Quote Request that is not rejected
pursuant to Section 2.3.2, the Administrative Agent shall send to each
of the Banks by telecopy an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit C hereto, which shall constitute
an invitation by the Borrower to each Bank to submit Competitive Bid
Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Section
2.3.
2.3.4. Submission and Contents of Competitive Bid Quotes.
_________________________________________________
(a) Each Bank may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Invitation for Competitive Bid Quotes.
Each Competitive Bid Quote must comply with the requirements of this
Section 2.3.4 and must be submitted to the Administrative Agent by
telecopy at the Administrative Agent's Office not later than (a) 9:00
a.m. (San Francisco time) at least three Business Days prior to the
proposed Borrowing Date, in the case of a Eurodollar Auction or (b)
9:00 a.m. (San Francisco time) on the proposed Borrowing Date, in the
case of an Absolute Rate Auction (or, in either case upon reasonable
prior notice to the Banks, such other time and date as the Borrower and
the Administrative Agent may agree); provided that Competitive Bid
________
Quotes submitted by Bank of America may only be submitted if Bank of
America notifies the Borrower of the terms of the offer or offers
contained therein not later than 15 minutes prior to the latest time at
which the relevant Competitive Bid Quotes must be submitted by the
other Banks. Subject to Articles IV and VIII, any Competitive Bid
Quote so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in
substantially the form of Exhibit D hereto and shall in any case
_________
specify:
(i) the proposed Borrowing Date, which shall
be the same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(ii) the principal amount of the Competitive
Bid Loan for which each such offer is being made, which principal
amount may be greater than, less than or equal to the Commitment, of
the quoting Bank, (2) must be at least $5,000,000 and an integral
multiple of $1,000,000, and (3) may not exceed the principal amount of
Competitive Bid Loans for which offers were requested,
(iii) in the case of a Eurodollar Auction, the
Competitive Bid Margin offered for each such Competitive Bid Loan,
(iv) the minimum or maximum amount, if any, of
the Competitive Bid Loan which may be accepted by the Borrower,
(v) in the case of an Absolute Rate Auction,
the Absolute Rate offered for each such Competitive Bid Loan, and
(vi) the identity of the quoting Bank.
(c) The Administrative Agent shall reject any
Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit
D hereto or does not specify all of the information required by Section
2.3.4(b);
(ii) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit D hereto;
_________
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive Bid
Quotes; or
(iv) arrives after the time set forth in
Section 2.3.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this
Section 2.3.4(c), then the Administrative Agent shall notify the
relevant Bank of such rejection as soon as practical.
2.3.5. Notice to Borrower. The Administrative Agent shall
__________________
promptly notify the Borrower of the terms (i) of any Competitive Bid
Quote submitted by a Bank that is in accordance with Section 2.3.4, and
(ii) of any Competitive Bid Quote that is in accordance with Section
2.3.4 and amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid Quote specifically states that it is
submitted solely to correct a manifest error in such former Competitive
Bid Quote. The Administrative Agent's notice to the Borrower shall
specify the aggregate principal amount of Competitive Bid Loans for
which offers have been received for each Interest Period specified in
the related Competitive Bid Quote Request and the respective principal
amounts and Eurodollar Bid Rates or Absolute Rates, as the case may be,
so offered.
2.3.6. Acceptance and Notice by Borrower. Not later than (i)
_________________________________
10:00 a.m. (San Francisco time) at least three Business Days prior to
the proposed Borrowing Date, in the case of a Eurodollar Auction, or
(ii) 10:00 a.m. (San Francisco time) on the proposed Borrowing Date, in
the case of an Absolute Rate Auction (or, in either case upon
reasonable prior notice to the Banks, such other time and date as the
Borrower and the Administrative Agent may agree), the Borrower shall
notify the Administrative Agent of its acceptance or rejection of the
offers so notified to it pursuant to Section 2.3.5; provided, however,
________ _______
that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such
offers. In the case of acceptance, such notice (a "Competitive Bid
_______________
Borrowing Notice") shall specify the aggregate principal amount of
________________
offers for each Interest Period that are accepted. The Borrower may
accept any Competitive Bid Quote in whole or in part (subject to the
terms of Section 2.3.4(b)(iv)); provided that:
________
(a) the aggregate principal amount of each Competitive
Bid Advance may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(b) acceptance of offers may only be made on the basis
of ascending Eurodollar Bid Rates or Absolute Rates, as the case may
be; and
(c) the Borrower may not accept any offer that is
described in Section 2.3.4(c) or that otherwise fails to comply with
the requirements of this Agreement for the purpose of obtaining a
Competitive Bid Loan under this Agreement.
2.3.7. Allocation by Administrative Agent. If offers are made by
__________________________________
two or more Banks with the same Eurodollar Bid Rates or Absolute Rates,
as the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Administrative
Agent among such Banks as nearly as possible (in such multiples, not
less than $1,000,000, as the Administrative Agent may deem appropriate)
in proportion to the aggregate principal amount of such offers;
provided, however, that no Bank shall be allocated a portion of any
Competitive Bid Advance which is less than the minimum amount which
such Bank has indicated that it is willing to accept. Allocations by
the Administrative Agent of the amounts of Competitive Bid Loans shall
be conclusive in the absence of manifest error. The Administrative
Agent shall promptly, but in any event on the same Business Day, notify
each Bank of its receipt of a Competitive Bid Borrowing Notice and the
aggregate principal amount of such Competitive Bid Advance allocated to
each participating Bank.
2.4. Fees.
____
2.4.1. Arrangement, Structuring and Agency Fees. The Borrower
________________________________________
shall pay such arrangement, structuring and agency fees to Bank of
America and the Administrative Agent in the amounts and at the times
specified in the letter agreement, dated October 8, 2003, between the
Borrower, Bank of America and Banc of America Securities LLC (the "Fee
Letter"). Such fees shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.
2.4.2. Administration Fee. The Borrower hereby agrees to pay to
__________________
the Administrative Agent an administration fee for Competitive Bid
Quote Requests in such amounts as are from time to time agreed upon by
the Borrower and the Administrative Agent.
2.4.3. Facility Fees.
_____________
(a) Facility Fees. The Borrower shall pay to the
_____________
Administrative Agent for the account of each Bank in accordance with
its pro rata share of the Commitments, a facility fee equal to the
Applicable Facility Fee Rate times the actual daily amount of the
Commitments, regardless of usage (without giving effect to any
reduction in Commitments due to outstanding Competitive Bid Loans).
The facility fee shall accrue at all times from the Effective Date
until the Termination Date and shall be due and payable quarterly in
arrears on each Payment Date, commencing with the first Payment Date to
occur after the Effective Date, and on the Termination Date.
(b) Calculation of Facility Fees. The facility fees
____________________________
shall be calculated quarterly in arrears, and if there is any change in
the Applicable Facility Fee Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Facility Fee
Rate separately for each period during such quarter that such
Applicable Facility Fee Rate was in effect. The facility fees shall
accrue at all times, including at any time during which one or more of
the conditions in Article IV is not met.
__________
2.4.4. Utilization Fee.
_______________
(a) Fees. The Borrower shall pay to the
____
Administrative Agent for the account of each Bank in accordance with
its pro rata share of the Commitments, a utilization fee equal to the
Applicable Utilization Fee Rate times the actual daily aggregate
outstanding Loans on each day that the aggregate outstanding amount of
the Loans equals or exceeds 33.0% of the Commitments (without giving
effect to any reduction in Commitments due to outstanding Competitive
Bid Loans). The utilization fee shall be due and payable quarterly in
arrears on each Payment Date, commencing with the first Payment Date to
occur after the Effective Date, and on the Termination Date.
(b) Calculation of Utilization Fee. 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 IV is not met.
__________
2.4.5. Banks' Participation Fee. On the Effective Date, the
________________________
Borrower shall pay to the Administrative Agent, for the account of the
Banks in accordance with their respective pro rata shares, a
participation fee in an amount set forth in the Fee Letter. Such
participation fees are for the credit facility committed to by the
Banks under this Agreement and are fully earned on the date paid. The
participation fee paid to each Bank is solely for its own account and
is nonrefundable for any reason whatsoever.
2.4.6. Computation of Fees. Computation of all fees shall be
___________________
calculated on the basis of a year of 360 days and the actual number of
days elapsed, which results in a higher yield to the payee thereof than
a method based on a year of 365 or 366 days.
2.5. General Facility Terms.
______________________
2.5.1. Method of Borrowing. Not later than 11:00 a.m. (San
___________________
Francisco time) on each Borrowing Date, each Bank shall make available
its Loan or Loans in funds immediately available to the Administrative
Agent at the Administrative Agent's Office. Unless otherwise
instructed by the Borrower, the Administrative Agent shall deposit the
funds so received from the Banks in the Borrower's account at Bank of
America's main office in San Francisco.
2.5.2. Minimum Amount of Each Advance. Each Ratable Advance, and
______________________________
each conversion and continuation with respect to a Ratable Advance,
shall be in the minimum amount of $10,000,000 (and in integral
multiples of $1,000,000 if in excess thereof); provided, however, that
any Floating Rate Advance may be in the aggregate amount of the unused
Commitments.
2.5.3. Repayment. Except for optional payments pursuant to
_________
Section 2.5.4, (a) each Competitive Bid Advance shall be paid in full
by the Borrower on the last day of the Interest Period applicable
thereto, and (b) each Ratable Advance shall be paid in full by the
Borrower on the last day of the Interest Period applicable thereto,
unless such Ratable Advance is converted or continued in accordance
with Section 2.2.4; but in any event all Advances shall be paid in full
on the Termination Date.
2.5.4. Optional Principal Payments. The Borrower may, upon
___________________________
notice to the Administrative Agent, from time to time pay all
outstanding Ratable Advances, or, in a minimum aggregate amount of
$10,000,000 (and in multiples of $1,000,000 if in excess thereof), any
portion of the outstanding Ratable Advances provided that such notice
must be received by the Administrative Agent not later than 11:00 a.m.
(San Francisco time) (i) three Business Days' prior to any date of
prepayment with respect to Eurodollar Ratable Advances and (ii) on the
date of prepayment with respect to Floating Rate Advances. All such
payments shall be made in immediately available funds to the
Administrative Agent at the Administrative Agent's Office by 11:00 a.m.
(San Francisco time) on the date of payment. A Competitive Bid Advance
may not be prepaid prior to the last day of its applicable Interest
Period without the prior consent of the Bank which originally made such
Loan, which consent may be given or withheld at the Bank's sole and
absolute discretion. Any prepayment of a Fixed Rate Advance prior to
the end of an applicable Interest Period shall be subject to the
indemnification provided in Section 3.4.
2.5.5. Interest Periods. Subject to the provisions of Section
________________
2.5.6, each Advance shall bear interest (i) with respect to any
Floating Rate Advance, on the outstanding principal amount from the
applicable borrowing date until payment in full, and (ii) with respect
to any other Advance, from the first day of the Interest Period
applicable thereto to the earlier of (a) the last day of such Interest
Period, or (b) the date of any earlier prepayment as permitted by
Section 2.5.4, at the interest rate determined as applicable to such
Advance, subject to the Borrower's right to convert or continue Ratable
Advances pursuant to Section 2.2.4. The Borrower shall not request a
Fixed Rate Advance if, after giving effect to the requested Fixed Rate
Advance, more than 20 separate Fixed Rate Advances would be
outstanding.
2.5.6. Rate after Maturity. Except as provided in the next
___________________
sentence, any Advance not paid at maturity, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per annum
equal to the Base Rate plus 1% per annum. In the case of a Fixed Rate
Advance the maturity of which is accelerated, such Fixed Rate Advance
shall bear interest for the remainder of the applicable Interest
Period, at the higher of (a) the rate otherwise applicable to such
Interest Period plus 1% per annum, or (b) the Base Rate plus 1% per
annum.
2.5.7. Interest Payment Dates; Interest Basis. Interest accrued
______________________________________
on each (i) Floating Rate Advance shall be payable on each Payment Date
and (ii) other Advance shall be payable on the last day of its
applicable Interest Period, and on any date on which such Advance is
prepaid, whether due to acceleration or otherwise. Interest accrued on
each Fixed Rate Advance having an Interest Period longer than three
months shall also be payable on the last day of each three?month
interval during such Interest Period. Interest on all Floating Rate
Advances calculated on the basis of the Base Rate shall be calculated
on the basis of a year of 365 or 366 days, as the case may be, and the
actual number of days elapsed. Interest on all other Advances shall be
calculated for the actual number of days elapsed on the basis of a year
of 360 days and the actual number of days elapsed, which results in a
higher yield to the payee thereof than a method based on a year of 365
or 366 days. Interest shall be payable for the day an Advance is made
but not for the day of any payment on the amount paid if payment is
received prior to 11:00 a.m. (San Francisco time) at the place of
payment. If any payment of principal or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in
computing interest in connection with such payment.
2.5.8. Method of Payment. All payments to be made by the
_________________
Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff, without prejudice to
Borrower's right to later assert any counterclaim, defense, recoupment
or setoff. Except as specifically provided in this Agreement and in
the following sentence, all payments by the Borrower hereunder shall be
made to the Administrative Agent, for the account of the respective
Banks to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than
11:00 a.m. (San Francisco time) on the date when due and shall be
applied (i) first, ratably among the Banks with respect to any
_____
principal and interest due in connection with Ratable Advances, (ii)
second, after all amounts described in clause (i) have been satisfied,
______
ratably among those Banks for whom any payment of principal and
interest is due in connection with any Competitive Bid Advances, and
(iii) third, after all amounts described in clauses (i) and (ii) have
_____
been satisfied, ratably to any other Obligations then due to the Banks.
If such payment is received by the Administrative Agent by 11:00 a.m.
(San Francisco time) such delivery to the Banks shall be made on the
same day and if received thereafter shall be made on the next
succeeding Business Day. The Administrative Agent is hereby authorized
to charge the account of the Borrower held at Bank of America for each
payment of principal, interest and fees owing by the Borrower as it
becomes due hereunder.
2.5.9. Notes; Telephonic Notices; Designation of Borrower. Each
__________________________________________________
Bank is hereby authorized to record on the schedule attached to each of
its Notes, or otherwise record in accordance with its usual practice,
the date and amount of each of its Loans of the type evidenced by such
Note; provided, however, that any failure to so record shall not affect
________ _______
the Borrower's Obligations under this Agreement or any Note. The
Borrower hereby authorizes the Banks and the Administrative Agent to
extend, continue and convert Advances, effect Rate Option selections
and submit Competitive Bid Quotes based on telephonic notices made by
any person or persons the Administrative Agent or any Bank in good
faith believes to be an authorized officer or an officer, employee or
agent of the Borrower designated by an authorized officer. The
Borrower agrees to deliver promptly to the Administrative Agent a
written or telecopy confirmation of each telephonic notice signed by an
authorized officer. If the written or telecopy confirmation differs in
any material respect from the action taken by the Administrative Agent
and the Banks, the records of the Administrative Agent and the Banks
shall govern absent manifest error.
2.5.10. Notification of Advances, Interest Rates and Prepayments.
________________________________________________________
The Administrative Agent will notify each Bank of the contents of each
Ratable Borrowing Notice, Notice of Conversion/Continuation (or
automatic conversion pursuant to subsection 2.2.4(c)), and payment
notice received by it hereunder promptly and in any event (provided
such items were timely received by the Administrative Agent from the
Borrower) before the close of business on the same Business Day of
receipt thereof (or, in the case of borrowing notices with respect to
Floating Rate Advances, within one hour of receipt thereof). The
Administrative Agent will notify each Bank of the interest rate
applicable to each Fixed Rate Advance promptly upon determination of
such interest rate and will give each Bank prompt notice of each change
in the Base Rate in respect of any outstanding Floating Rate Advance.
2.5.11. Non-Receipt of Funds by the Administrative Agent. Unless
________________________________________________
the Borrower or any Bank has notified the Administrative Agent, prior
to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Bank, as the
case may be, will not make such payment, the Administrative Agent may
assume that the Borrower or such Bank, as the case may be, has timely
made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in
fact made to the Administrative Agent in immediately available funds,
then:
(i) if the Borrower failed to make such payment, each
Bank shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Bank in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Bank to the date such amount is
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(ii) if any Bank failed to make such payment, such Bank
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Bank pays such amount to the Administrative Agent, then
such amount shall constitute such Bank's Ratable Loan or Competitive
Bid Loan, as the case may be, included in the applicable Borrowing. If
such Bank does not pay such amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such amount to
the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Bank from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or the Borrower may
have against any Bank as a result of any default by such Bank
hereunder.
A notice of the Administrative Agent to any Bank or the Borrower with
respect to any amount owing under this Section 2.5.11 shall be
conclusive, absent manifest error.
2.5.12. Cancellation. The Borrower may, at any time after the
____________
Effective Date, upon not less than five Business Days' prior written
notice to the Administrative Agent, terminate or permanently reduce the
Commitments in whole, or in a minimum aggregate amount of $10,000,000
(and in integral multiples of $1,000,000 in excess thereof); unless,
______
after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of the
Loans would exceed the amount of the combined Commitments then in
effect. All accrued commitment fees to, but not including, the
effective date of any reduction or termination of Commitments shall be
paid on the effective date of such reduction or termination. Once the
Commitments are reduced in accordance with this Section, they may not
be increased.
2.5.13. Lending Offices. Each Bank may from time to time, by
_______________
written or telecopy notice to the Administrative Agent and the
Borrower, change its Lending Office and for whose account Loan payments
are to be made.
ARTICLE III
TAXES, CHANGE IN CIRCUMSTANCES
______________________________
3.1. Taxes.
_____
(a) Any and all payments by the Borrower to each Bank
or the Administrative Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, the Borrower agrees to pay
all Other Taxes.
(b) If the Borrower shall be required by law to deduct
or withhold any Taxes, Other Taxes or Further Taxes from or in respect
of any sum payable hereunder to any Bank or the Administrative Agent,
then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions and
withholdings (including deductions and withholdings applicable to
additional sums payable under this Section), such Bank or the
Administrative Agent, as the case may be, receives and retains an
amount equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings;
(iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable Law; and
(iv) the Borrower shall also pay to each Bank or
the Administrative Agent for the account of such Bank, at the time
interest is paid, Further Taxes in the amount that the respective Bank
specifies as necessary to preserve the after-tax yield the Bank would
have received if such Taxes, Other Taxes or Further Taxes had not been
imposed.
(c) The Borrower agrees to indemnify and hold harmless
each Bank and the Administrative Agent for the full amount of (i)
Taxes, (ii) Other Taxes, and (iii) Further Taxes in the amount that the
respective Bank specifies as necessary to preserve the after-tax yield
the Bank would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further
Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date the Bank or
the Administrative Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the
Borrower of Taxes, Other Taxes or Further Taxes, the Borrower shall
furnish to each Bank or the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to such Bank or the Administrative
Agent.
3.2. Yield Protection. If, after the date hereof, because of
________________
the enactment of, or any change in, any Law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any interpretation thereof
(other than such enactments or changes that are not effective as of
August 31, 2003 but are scheduled to become effective thereafter
pursuant to such laws, rules, regulations, policies, guidelines,
directives or interpretations that are effective as of August 31,
2003), which
(a) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank (other than reserves and assessments taken
into account in determining the interest rate applicable to Fixed Rate
Advances), or
(b) imposes any other condition the result of which is
to increase the cost to any Bank of making, funding or maintaining
loans or reduces any amount receivable by any Bank in connection with
loans, or requires any Bank to make any payment calculated by reference
to the amount of loans held or interest received by it, by an amount
deemed material by such Bank, or
(c) affects the amount of capital required or expected
to be maintained by any Bank or any corporation controlling any Bank
and such Bank determines the amount of capital required is increased by
or based upon the existence of this Agreement or its obligation to make
Loans hereunder or of commitments of this type,
Then, within 15 days of demand by such Bank through the Administrative
Agent, the Borrower shall pay such Bank that portion of such increased
expense incurred (including, in the case of Section 3.2(c), any
reduction in the rate of return on capital to an amount below that
which it could have achieved but for such law, rule, regulation,
policy, guideline or directive and after taking into account such
Bank's policies as to capital adequacy) or reduction in an amount
received which such Bank determines is attributable to making, funding
and maintaining its Loans and its Commitment. Notwithstanding the
foregoing, if a Bank fails to make a claim within 90 days after it
becomes, or ought reasonably to have become, aware of any event giving
rise to a claim under this Section 3.2, then such Bank shall be
entitled to make any claim under this Section 3.2 only in respect of
any amounts due under this Section 3.2 that are attributable to the
period following the 90th day preceding the day upon which the Bank
makes such claim.
3.3. Availability of Rate Options. If any Bank determines that
____________________________
maintenance of any of its Fixed Rate Loans at a suitable Lending Office
would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, such Bank shall so notify the
Administrative Agent and the Administrative Agent shall suspend the
availability of the affected Rate Option and require any Fixed Rate
Advances outstanding under the affected Rate Option to be repaid; or if
any Bank determines that (i) deposits of a type or maturity appropriate
to match fund Fixed Rate Advances are not available, the Administrative
Agent shall suspend the availability of the affected Rate Option with
respect to any Fixed Rate Advances made after the date of any such
determination, or (ii) a Rate Option does not accurately reflect the
cost of making a Fixed Rate Advance at such Rate Option, such Bank
shall so notify the Administrative Agent and then the Administrative
Agent shall suspend the availability of the affected Rate Option with
respect to any Fixed Rate Advances made after the date of any such
determination.
3.4. Funding Indemnification. If any payment of a Fixed Rate
_______________________
Advance occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment, automatic
conversion or otherwise, or the Borrower requests a Fixed Rate Advance,
or the continuation or conversion of an Advance as or to a Fixed Rate
Advance, and the Borrower does not borrow, continue or convert such
Fixed Rate Advance on the date specified by the Borrower except by
reason of default by the Banks, the Borrower will indemnify each Bank
for any loss or cost incurred by it resulting therefrom, including any
loss or cost in liquidating or employing deposits acquired to fund or
maintain the Fixed Rate Advance.
3.5. Regulation D Compensation. Each Bank may through the
_________________________
Administrative Agent request the Borrower to pay and upon such request
the Borrower shall pay, contemporaneously with each payment of interest
on the Borrower's Eurodollar Ratable Loans, additional interest on such
Loans at a rate per annum determined by such Bank up to but not
exceeding the excess of (i) (A) the Eurodollar Base Rate divided by (B)
one minus the Reserve Requirement with respect to Eurodollar
_____
liabilities over (ii) the Eurodollar Base Rate. Any Bank wishing to
require payment of such additional interest (x) shall so notify the
Borrower and the Administrative Agent, in which case such additional
interest on the Eurodollar Ratable Loans of such Bank shall be payable
to such Bank at the place indicated in such notice with respect to each
Interest Period commencing at least five Business Days after the giving
of such notice, and (y) shall notify the Borrower at least five
Business Days prior to each date on which interest is payable on the
Eurodollar Ratable Loans of the amount then due it under this Section.
3.6. Bank Statements; Survival of Indemnity. To the extent
______________________________________
reasonably possible, each Bank shall designate an alternate Lending
Office with respect to its Fixed Rate Loans to reduce any liability of
the Borrower to such Bank under Section 3.1 or 3.2 or to avoid the
unavailability of a Rate Option under Section 3.3, so long as such
designation is not prohibited by applicable legal and regulatory
restrictions and not disadvantageous to such Bank as determined in its
sole discretion. Each Bank shall deliver to the Borrower through the
Administrative Agent a written statement of such Bank as to the amount
due, if any, under Sections 3.1, 3.2 or 3.4, simultaneously with making
a request for payment under said Sections 3.1, 3.2 or 3.4. Such
written statement shall set forth in reasonable detail the calculations
upon which such Bank determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest
error. Determination of amounts payable under such Sections in
connection with a Fixed Rate Loan shall be calculated as though each
Bank funded its Fixed Rate Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference
in determining the Fixed Rate for such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount
specified in the written statement shall be payable on demand after
receipt by the Borrower of the written statement. The Obligations of
the Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of
the Obligations and termination of this Agreement.
3.7. Removal of Banks. If (i) the obligation of any Bank to
________________
make or continue any Loans as, or convert Loans to, Eurodollar Ratable
Loans has been suspended pursuant to Section 3.3, or (ii) any Bank has
demanded compensation under Section 3.1 or 3.2, the Borrower may elect
to terminate this Agreement as to such Bank, provided that (i) the
Borrower notifies such Bank through the Administrative Agent of such
election at least five Business Days before any date fixed for a
borrowing, (ii) the Borrower repays all outstanding Obligations to such
Bank at the end of the respective Interest Periods applicable thereto
and (iii) no Default or Unmatured Default exists. Upon receipt by the
Administrative Agent of such notice, the Commitment of such Bank shall
terminate.
ARTICLE IV
CONDITIONS PRECEDENT
____________________
4.1. Closing. Concurrently with the execution of this
_______
Agreement and prior to making the initial Advance, the Borrower will
deliver to the Administrative Agent, with sufficient copies for the
Banks, the following documents, in form and substance satisfactory to
the Administrative Agent and the Banks:
(a) Executed copies of this Agreement.
(b) Competitive Bid Notes and Ratable Notes payable to
the order of each of the Banks requesting Notes.
(c) Copies, certified as of a date not more than one
week prior to the Effective Date by the Secretary or Assistant
Secretary (or comparable officer) of the Borrower, of its Board of
Directors' (or Executive Committee's) resolutions authorizing execution
of the Loan Documents.
(d) An incumbency certificate, executed as of a date
not more than one week prior to the Effective Date by the Secretary or
Assistant Secretary (or comparable officer) of the Borrower which shall
identify by name and title and bear the signature of the officers of
the Borrower authorized to sign the Loan Documents and to make
borrowings hereunder, upon which certificate the Administrative Agent
and the Banks shall be entitled to rely until informed of any change in
writing by the Borrower.
(e) A written opinion of the Borrower's in-house
counsel, addressed to the Administrative Agent and the Banks in
substantially the form of Exhibit E hereto (which opinion the Borrower
_________
hereby expressly instructs such counsel to prepare and deliver to the
Administrative Agent and the Banks for their benefit).
(f) One copy of the Articles of Incorporation (or
comparable document) of the Borrower, together with all amendments,
certified as of a recent date by the appropriate governmental officer
in the State of Oregon.
(g) A copy, certified by the Secretary or Assistant
Secretary (or comparable officer) of the Borrower, of its Bylaws.
(h) A certificate, signed by the chief financial
officer of the Borrower, stating that (x) on the Effective Date no
Default or Unmatured Default has occurred and is continuing and (y)
there has not occurred a material adverse change since May 31, 2003 in
the business, assets, liabilities, operations or financial condition of
the Borrower and its Subsidiaries taken as a whole or in the facts and
information regarding such entities as represented to date.
(i) Evidence satisfactory to the Administrative Agent
that the Existing Credit Agreement has been terminated and no loans or
other amounts are outstanding thereunder.
(j) Such other documents as any Bank or its counsel may
have reasonably requested prior to execution of the Agreement.
(k) Any fees required to be paid on or before the
Effective Date shall have been paid.
4.2. Each Advance. The Banks shall not be required to make any
____________
Advance, unless on the applicable Borrowing Date:
(a) No Default or Unmatured Default has occurred and is
continuing, or would result from such proposed Advance.
(b) The representations and warranties contained in
Article V are true and correct as of such Borrowing Date except for
changes in the Schedules hereto reflecting transactions permitted by
this Agreement.
Each Ratable Borrowing Notice or Competitive Bid Quote Request
with respect to each such Advance shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections
4.2(a) and (b) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
______________________________
The Borrower represents and warrants to the Banks that:
5.1. Corporate Existence. The Borrower is a corporation duly
___________________
incorporated and validly existing under the laws of the State of Oregon
and is duly qualified and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
5.2. Authorization and Validity. The Borrower has the
__________________________
corporate power and authority and legal right to execute and deliver
the Loan Documents and to perform its Obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the
performance of its Obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents constitute legal,
valid and binding Obligations of the Borrower enforceable against the
Borrower in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution
_______________________________
and delivery by the Borrower of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate any Law, order, writ,
judgment, injunction, decree or award binding on the Borrower or any
Subsidiary or the Borrower's or any Subsidiary's articles of
incorporation or bylaws or the provisions of any indenture, instrument
or agreement to which the Borrower or any Subsidiary is a party or is
subject, or by which it, or its property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the property of the Borrower or a
Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption
by, any Governmental Authority, or any subdivision thereof, is required
to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4. Financial Statements. The May 31, 2003 and the August 31,
____________________
2003 consolidated financial statements of the Borrower and the
Subsidiaries heretofore delivered to the Banks were prepared in
accordance with generally accepted accounting principles in effect on
the date such statements were prepared and fairly present the
consolidated financial condition and operations of the Borrower and the
Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
5.5. Taxes. The Borrower and the Subsidiaries have filed all
_____
United States federal tax returns and all other United States and
foreign tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any Subsidiary, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves
have been provided. The United States income tax returns of the
Borrower and the Subsidiaries have been audited by the Internal Revenue
Service through the fiscal year ended May 31, 1994. No tax liens have
been filed and no claims are being asserted with respect to any such
taxes. The charges, accruals and reserves on the books of the Borrower
and the Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.6. Litigation and Contingent Obligations. There is no
_____________________________________
litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of the Borrower's officers,
threatened against or affecting the Borrower or any Subsidiary which
might materially adversely affect the business, properties, financial
condition prospects, or results of operations of the Borrower or the
ability of the Borrower to perform its Obligations under the Loan
Documents. The Borrower has no material contingent obligations not
provided for or disclosed in the financial statements referred to in
Section 5.4.
5.7. Subsidiaries. Schedule 1 hereto contains an accurate list
____________ __________
of all of the presently existing Subsidiaries of the Borrower, setting
forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Borrower or
other Subsidiaries as of the Effective Date. All of the issued and
outstanding shares of capital stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable. Each
Subsidiary is duly organized or formed and validly existing under the
laws of its jurisdiction of incorporation or organization and is duly
qualified and has all requisite power and authority to conduct its
business in each jurisdiction in which its business is conducted.
5.8. ERISA. There are no material Unfunded Liabilities. Each
_____
Plan complies in all material respects with all applicable requirements
of Law and regulations, no Reportable Event has occurred with respect
to any Plan, neither the Borrower nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do
so, and no steps have been taken to terminate any Plan.
5.9. Accuracy of Information. No information, exhibit or
_______________________
report furnished by the Borrower or any Subsidiary to the
Administrative Agent or to any Bank in connection with the negotiation
of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading.
5.10. Regulation U. Neither the Borrower nor any Subsidiary
____________
owns any margin stock (as defined in Regulation U).
5.11. Material Agreements. Neither the Borrower nor any
___________________
Subsidiary is a party to any agreement or instrument or subject to any
charter or other corporate restriction which might have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default
in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in (i) any agreement to
which it is a party, which default might have a Material Adverse Effect
or (ii) any agreement or instrument evidencing or governing
Indebtedness.
5.12. Compliance With Laws. The Borrower and its Subsidiaries
____________________
have complied with all applicable statutes, rules, regulations, orders
and restrictions of any domestic or foreign government or any
instrumentality or agency thereof, having jurisdiction over the conduct
of their respective businesses or the ownership of their respective
properties where failure to comply might have a Material Adverse
Effect.
5.13. Ownership of Properties. Except as set forth on Schedule
_______________________ ________
2 hereto, on the date of this Agreement, the Borrower and its
_
Subsidiaries will have good title, free of all Liens other than those
permitted by Section 6.15, to all of the properties and assets
reflected in the financial statements as owned by them.
5.14. Post-Retirement Benefits. The amount of the present value
________________________
of the expected cost of post-retirement medical and insurance benefits
payable by the Borrower and its Subsidiaries to their employees and
former employees, as estimated by the Borrower in accordance with
reasonable procedures and assumptions, is not material to the financial
condition of the Borrower.
5.15 Environmental and Safety and Health Matters. To the best
___________________________________________
of the knowledge of the Borrower, the Borrower and each Subsidiary are
in compliance with all Environmental Laws and Occupational and Health
Laws where failure to comply would reasonably be expected to have a
Material Adverse Effect on the ability of the Borrower to perform its
obligations hereunder. Neither the Borrower nor any Subsidiary has
received notice of any claims that any of them is not in compliance in
all material respects with the Environmental Laws where failure to
comply would reasonably be expected to have a Material Adverse Effect
on the ability of the Borrower to perform its Obligations.
ARTICLE VI
COVENANTS
_________
During the term of this Agreement, unless the Majority Banks shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for
___________________
itself and each Material Subsidiary, a system of accounting established
and administered in accordance with generally accepted accounting
principles, and furnish to the Administrative Agent with sufficient
copies for each Bank:
(a) Within 100 days after the close of each of its
fiscal years, an unqualified audit report certified by independent
certified public accountants, acceptable to the Banks, prepared in
accordance with generally accepted accounting principles on a
consolidated basis for itself and the Subsidiaries, including balance
sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows.
(b) Within 50 days after the close of each of the first
three quarterly periods of each of its fiscal years, for itself and the
Subsidiaries, a consolidated unaudited balance sheet as at the close of
such period, and a consolidated profit and loss statement and a
consolidated statement of cash flows for the period from the beginning
of such fiscal year to the end of such quarter, all certified by its
chief financial officer.
(c) Together with the financial statements required
hereunder, a compliance certificate in substantially the form of
Exhibit H hereto signed by its chief financial officer showing the
_________
calculations necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists or, if any Default
or Unmatured Default exists, stating the nature and status thereof.
(d) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished.
(e) Promptly upon the filing thereof, copies of all
S?1's, 10?Ks and 10?Qs (and any substitute which may hereafter be
required) which the Borrower or any Material Subsidiary files with the
Securities and Exchange Commission.
(f) Promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to treat the
Loans as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS
Form 8886 or any successor form.
(g) Such other information (including non?financial
nformation) as the Administrative Agent or any Bank may from time to
time reasonably request.
Documents required to be delivered pursuant to clauses
(a), (b), (d) and (e) of this Section 6.1 (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 the Borrower posts such
documents, or provides a link thereto on the Borrower's website on the
Internet at the website address at xxx.xxxxxxx.xxx; or (ii) on which
such documents are posted on the Borrower's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which
each Bank and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver
paper copies of such documents to the Administrative Agent or any Bank
that requests the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative
Agent or such Bank and (ii) the Borrower shall notify (which may be by
facsimile or electronic mail) the Administrative Agent and each Bank of
the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of
such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.1(c) to the
Administrative Agent and each of the Banks. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each
Bank shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
6.2. Use of Proceeds. The Borrower will, and the Borrower will
_______________
cause each Subsidiary to, use the proceeds of the Advances for working
capital purposes and general corporate purposes; provided that the
________
proceeds of the Advances shall not be used for the direct financing of
an Unfriendly Acquisition, a bid to make an Unfriendly Acquisition or
any steps preliminary to an Unfriendly Acquisition or a bid to make an
Unfriendly Acquisition. The Borrower will not, nor will the Borrower
permit any Subsidiary to, use any of the proceeds of the Loans to
purchase or carry any "margin stock" (as defined in Regulations U and
X) or to extend credit to any person to purchase or carry any margin
stock, or extend credit to any person for any of the aforesaid
purposes.
6.3. Notice of Default. The Borrower will, and will cause each
_________________
Subsidiary to, give prompt notice in writing to the Administrative
Agent and Banks of (i) the occurrence of any Default or Unmatured
Default, (ii) any other development, financial, legal or otherwise,
which the Borrower reasonably expects will have a Material Adverse
Effect or would materially adversely affect the ability of the Borrower
to repay the Obligations, and (iii) receipt of any notice that the
operations of the Borrower or any Subsidiary are not in compliance with
requirements of any applicable Environmental Law or any Occupational
Safety and Health Law where failure to comply would reasonably be
expected to have a Material Adverse Effect on the ability of the
Borrower to perform its Obligations hereunder, or receipt of notice
that any properties or assets of the Borrower or any Subsidiary are
subject to an Environmental Lien securing obligations in excess of
$20,000,000. As used herein, "Environmental Lien" means a Lien in
__________________
favor of any Governmental Authority for (i) any liability under any
Environmental Law, or (ii) damages arising from or costs incurred by
such Governmental Authority in response to a spillage, disposal or
release into the environment of any hazardous or toxic substance.
6.4. Preservation of Existence; Conduct of Business. The
______________________________________________
Borrower will, and will cause each Subsidiary to, do all things
necessary to remain duly incorporated and validly existing as a
corporation in its jurisdiction of incorporation and maintain all
requisite authority to conduct its business in each jurisdiction in
which its business is conducted; provided that the Borrower may
________
liquidate or dissolve any Subsidiary into the Borrower or any other
Subsidiary, provided, however, that a Material Subsidiary may not
________ _______
liquidate or dissolve into a Subsidiary that is not a Material
Subsidiary. The Borrower will not, and will not permit any Subsidiary
to, engage in any material line of business substantially different
from those lines of business carried on by the Borrower and its
Subsidiaries on the date hereof or such other lines of business as are
reasonably related thereto.
6.5. Taxes. The Borrower will, and will cause each Subsidiary
_____
to, pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or property, except those which
are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside.
6.6. Insurance. The Borrower will, and will cause each
_________
Subsidiary to, maintain with financially sound and reputable insurance
companies insurance, or a program of self-insurance, on all their
property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to the
Administrative Agent upon any Bank's request full information as to the
insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause
____________________
each Subsidiary to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be
subject where noncompliance could reasonably be expected to have a
Material Adverse Effect.
6.8. Maintenance of Properties; Trademarks and Franchises. The
____________________________________________________
Borrower will, and will cause each Subsidiary to, do all things
necessary to maintain, preserve, protect and keep its properties in
good repair, working order and condition, and make all necessary and
proper repairs, renewals and replacements so that its business carried
on in connection therewith may be properly conducted at all times. The
Borrower and each Subsidiary own, are licensed or otherwise have the
lawful right to use, and will continue to own, be licensed or have the
lawful right to use, all permits and other governmental approvals,
patents, trademarks, trade names, copyrights, technology, know-how and
processes used in or necessary for the conduct of their businesses as
currently conducted. The use of such permits and other governmental
approvals, patents, trademarks, trade names, copyrights, technology,
know-how and processes by the Borrower and each of its Subsidiaries
does not infringe on the rights of any Person.
6.9. Inspection. Subject to Section 10.12 hereof, the Borrower
__________
will, and will cause each Subsidiary to, permit the Administrative
Agent or any Bank, by their respective representatives and agents, to
inspect any of the properties, corporate books and financial records of
the Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the
Borrower and each Subsidiary with, and to be advised as to the same by,
their respective officers at such reasonable times and intervals as the
Administrative Agent or any Bank may designate.
6.10. Dividends. The Borrower will not, nor will it permit any
_________
Subsidiary to, declare or pay any dividends on its capital stock (other
than dividends payable in its own capital stock) or redeem, repurchase
or otherwise acquire or retire any of its capital stock at any time
outstanding, if, after giving effect thereto, the Borrower or any
Subsidiary is in violation of any of the provisions hereof.
6.11. Merger. The Borrower will not, nor will it permit any
______
Material Subsidiary to, merge or consolidate with or into any other
Person, except that (a) a Material Subsidiary may merge or consolidate
with the Borrower or another Material Subsidiary, provided, that in
________
connection with any merger or consolidation involving the Borrower, the
Borrower is the surviving entity, and (b) the Borrower or a Material
Subsidiary may merge or consolidate with any other Person to effect an
Acquisition permitted by Section 6.14, provided, that the Borrower or
________
such Material Subsidiary, as applicable, is the surviving entity.
6.12 Sale of Assets. The Borrower will not, nor will it permit
______________
any Subsidiary to, lease, sell or otherwise dispose of all or any of
its property, assets or business to any other Person except (i) sales
of inventory in the ordinary course of business, and (ii) any other
disposals of assets (including sale and leasebacks but excluding the
sale and leaseback of the Borrower's headquarters in Beaverton, Oregon)
so long as the aggregate book value of the assets so disposed by the
Borrower and its Subsidiaries in any period of twelve consecutive
months, commencing on or after the date hereof, does not exceed 20% of
the aggregate book value of the assets of the Borrower and its
Subsidiaries, taken as a whole ("Substantial Portion"), as of the end
___________________
of the fiscal quarter immediately preceding the date of calculation.
6.13. Sale and Leaseback. The Borrower will not, nor will it
__________________
permit any Subsidiary to, sell or transfer any property in order to
concurrently or subsequently lease as lessee such or similar property
except with respect to sales of property or sale and leaseback
transactions which would be permitted by Section 6.12.
6.14. Acquisitions. The Borrower will not, nor will it permit
____________
any Subsidiary to, make any Acquisition if the Acquisition is of a
Person engaged in businesses not permitted by Section 6.4.
6.15. Liens. The Borrower will not, nor will it permit any
_____
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on
the property of the Borrower or any Subsidiary, except:
(a) Liens for taxes, assessments or governmental
charges or levies on its property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings.
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of obligations not
more than 30 days past due.
(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(d) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrower
or the Subsidiaries.
(e) Liens existing on the date hereof and described in
Schedule 2 hereto.
__________
(f) Liens incurred in connection with the purchase by
the Borrower or a Subsidiary of tangible assets (excluding inventory)
provided the Indebtedness secured thereby does not exceed the purchase
price of such asset, plus any related interest and fees and the Lien
attaches only to the asset so purchased.
(g) Liens incurred in connection with the acquisition
of real estate and construction of buildings for or on behalf of the
Borrower or a Subsidiary provided that:
(i) the Indebtedness secured by such Lien does
not exceed the cost of such construction, plus any related interest and
fees, and
(ii) the aggregate book value of all real estate
and buildings subject to Liens permitted by this subparagraph (g), does
not exceed 20% of the Borrower's net worth at the time of
determination.
(h) Liens not otherwise permitted hereunder, on
property other than accounts receivable and inventory, provided that
the aggregate amount of Indebtedness secured thereby (other than those
referred to in (a) through (g) above) shall not at any one time exceed
$100,000,000 or its Dollar equivalent at such time in other currencies.
(i) Liens filed in connection with the construction of,
and additions to, the Borrower's headquarters in Beaverton, Oregon in
an aggregate amount which do not reflect obligations of the Borrower in
excess of $100,000,000.
6.16. Affiliates. The Borrower will not, and will not permit
__________
any Subsidiary to, enter into any transaction (including the purchase
or sale of any property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business
and pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less
favorable to the Borrower than the Borrower or such Subsidiary would
obtain in a comparable arm's length transaction.
6.17. Capitalization Ratio. The Borrower will not as of the end
____________________
of any fiscal quarter from and after the Effective Date permit the
Capitalization Ratio to exceed 0.50 to 1.00.
6.18. Notice of Rating Change. The Borrower shall, no later
_______________________
than ten (10) Business Days after the chief executive officer, the
president, any corporate vice president or the treasurer of the
Borrower obtains knowledge of any such change, give notice to the
Administrative Agent (by telephone, followed promptly by written notice
transmitted by facsimile with a hard copy sent promptly thereafter) of
any change in rating by any Rating Agency in respect of the Borrower's
long-term, senior unsecured, non-credit-enhanced debt, together with
the details thereof, and of any announcement by any Rating Agency that
its rating in respect of such senior unsecured long-term debt is "under
review" or that any such debt rating has been placed on a "CreditWatch
List"(r) or "watch list" or that any similar action has been taken by
such Rating Agency.
ARTICLE VII
DEFAULTS
________
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary to the Banks or the
Administrative Agent under or in connection with this Agreement, any
Loan, or any certificate or information delivered in connection with
this Agreement or any other Loan Document shall be materially false on
the date as of which made.
7.2. Nonpayment of principal of any Loan when due, or
nonpayment of interest upon any Loan or of any commitment fee or other
Obligations under any of the Loan Documents within five days after the
same becomes due.
7.3. The breach by the Borrower of any of the terms or
provisions of Sections 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or
6.17. The breach by the Borrower (other than a breach which
6.18. constitutes a Default under Section 7.1, 7.2 or the preceding
sentence of this Section 7.3) of any of the terms or provisions of this
Agreement which is not remedied within 30 days after written notice
from the Administrative Agent or any Bank.
7.4. Failure of the Borrower or any Subsidiary to pay any
Indebtedness in an aggregate principal amount in excess of $50,000,000
within 30 days after the Borrower knows or ought reasonably to have
known, that such Indebtedness was due; or the default by the Borrower
or any Subsidiary in the performance of any term, provision or
condition contained in any agreement under any such Indebtedness was
created or is governed, or any other event shall occur or condition
exist, the effect of which is to cause, or to permit the holder or
holders of such Indebtedness to cause such Indebtedness to become due
prior to its stated maturity; or any such Indebtedness of the Borrower
or any Subsidiary shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or the Borrower or any Subsidiary shall
not pay, or admit in writing its inability to pay, its debts generally
as they become due.
7.5. The Borrower or any Subsidiary shall (i) have an order for
relief entered with respect to it under any Debtor Relief Law as now or
hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial part of its property, (iv)
institute any proceeding seeking an order for relief under any Debtor
Relief Law as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its
debts under any Debtor Relief Law or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate action to authorize or effect any of
the foregoing actions set forth in this Section 7.5, or (vi) fail to
contest in good faith any appointment or proceeding described in
Section 7.6.
7.6. Without the application, approval or consent of the
Borrower or any Subsidiary, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Borrower or any
Subsidiary or any substantial part of its property, or a proceeding
described in Section 7.5(iv) shall be instituted against the Borrower
or any Subsidiary and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 30 days
with respect to any such appointment or proceeding against the Borrower
or a Subsidiary incorporated within the United States and 60 days with
respect to any Subsidiary incorporated outside of the United States.
7.7. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of
all or any Substantial Portion of the property of the Borrower or any
Subsidiary.
7.8. The Borrower or any Subsidiary shall fail within 30 days
to pay, bond or otherwise discharge, one or more judgments or orders
for the payment of money in excess of $20,000,000 in the aggregate,
which are not stayed on appeal or otherwise being appropriately
contested in good faith. Any Liens arising out of such judgments or
orders are subject to the provisions of Section 6.15(h).
7.9. Any Reportable Event shall occur in connection with any
Plan or any material Unfunded Liabilities shall exist.
7.10. Any Change in Control shall occur. "Change in Control"
means either (a) with respect to any capital stock of the Borrower that
is publicly traded, the acquisition after the date of this Agreement by
any Person or two or more Persons acting in concert, other than the
Knight Family, of beneficial ownership (within the meaning of Rule
13d?3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 50% or more of the outstanding shares of such
capital stock which are entitled to vote in the election of directors;
or (b) with respect to any capital stock of the Borrower that is not
publicly traded, if the Knight Family shall at any time fail to own and
control 67% or more of the outstanding shares of such capital stock.
7.11. There occurs under any agreement or arrangement designed
to protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such
party's assets, liabilities or exchange transactions, including, but
not limited to, interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants
(each, a "Swap Contract"), an "early termination date" (as defined in
such Swap Contract) resulting from (a) any "event of default" (as
defined in such Swap Contract) under such Swap Contract as to which the
Borrower or any Subsidiary is the defaulting party, or (b) any
"termination event" (as defined in such Swap Contract) as to which the
Borrower or any Subsidiary is an affected party, and, in either event,
the net xxxx-to-market value for such Swap Contract, as determined by
the Borrower based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Contracts, owed by the Borrower or such Subsidiary as a result thereof
is greater than $20,000,000.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
______________________________________________
8.1. Acceleration. If any Default described in Section 7.5,
____________
7.6 or 7.7 occurs, the obligations of the Banks to make Loans to the
Borrower hereunder shall automatically terminate and the Obligations of
the Borrower shall immediately become due and payable without any
election or action on the part of the Administrative Agent or any Bank.
If any other Default occurs, the Majority Banks may terminate or
suspend the obligations of the Banks to make Loans to the Borrower
hereunder, or declare the Obligations of the Borrower to be due and
payable, or both, whereupon such Obligations shall become immediately
due and payable, without presentment, demand, protest or notice of any
kind, all of which the Borrower hereby expressly waives.
If, within 14 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Banks to make
Loans hereunder as a result of any Default (other than any Default as
described in Section 7.5, 7.6, 7.7 or 7.10) and before any judgment or
decree for the payment of the Obligations due shall have been obtained
or entered, the Majority Banks (in their sole discretion) shall so
direct, the Administrative Agent shall, by notice to the Borrower,
rescind and annul such acceleration and/or termination.
8.2. Amendments and Waivers. No amendment or waiver of any
______________________
provision of this Agreement or any other Loan Document, and no consent
to any departure by the Borrower therefrom, shall be effective unless
in writing signed by the Majority Banks and the Borrower and
acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.1
without the written consent of each Bank;
(b) extend or increase the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 8.1) without
the written consent of such Bank;
(c) postpone any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or
other amounts due to the Banks (or any of them) hereunder or under any
other Loan Document without the written consent of each Bank directly
affected thereby;
(d) reduce the principal of, or the rate of interest
specified herein on, any Loan, or any fees or other amounts payable
hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any
applicable defined term) used in determining the Applicable Margin,
Applicable Facility Fee Rate, or Applicable Utilization Fee Rate, as
the case may be, that would result in a reduction of any interest rate
on any Loan or any fee payable hereunder without the written consent of
each Bank directly affected thereby;
(e) change Section 2.5.8 or Section 12.2 in a manner
that would alter the pro rata sharing of payments required thereby
without the written consent of each Bank; or
(f) change any provision of this Section or the
definition of "Majority Banks" or any other provision hereof specifying
the number or percentage of Banks required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Bank;
provided, that no amendment, waiver or consent shall, unless in writing
________
and signed by the Administrative Agent in addition to the Banks
required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and provided further
that the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto.
8.3. Preservation of Rights. No delay or omission of the Banks
______________________
or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any
Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the
Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Banks and the
Administrative Agent required pursuant to Section 8.2, and then only to
the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Administrative Agent and the Banks
until the Obligations have been paid in full.
ARTICLE IX
NOTICES
_______
9.1. Giving Notice. Except as otherwise permitted by Section
_____________
2.5.9 with respect to borrowing notices, all notices and other
communications provided to any party hereto under this Agreement or any
other Loan Document shall be in writing or by facsimile and addressed
or delivered to such party at its address set forth below its signature
hereto or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed by certified mail,
return receipt requested and properly addressed with postage prepaid,
shall be deemed given when received and receipt confirmed; any notice,
if transmitted by facsimile, shall be deemed given when legibly
transmitted and receipt confirmed.
9.2. Change of Address. The Borrower, the Administrative Agent
_________________
and any Bank may each change the address for notices by a notice in
writing, in the case of the Borrower or the Administrative Agent, to
the other parties hereto and, in the case of any Bank, to the Borrower
and the Administrative Agent.
ARTICLE X
GENERAL PROVISIONS
__________________
10.1. Survival of Representations. All representations and
___________________________
warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Bank, regardless of
any investigation made by the Administrative Agent or any Bank or on
their behalf and notwithstanding that the Administrative Agent or any
Bank may have had notice or knowledge of any Default or Unmatured
Default at the time of any Loan or Commitment, and shall continue in
full force and effect as long as any Loan or any other Obligation shall
remain unpaid or unsatisfied.
10.2. Governmental Regulation. Anything contained in this
_______________________
Agreement to the contrary notwithstanding, no Bank shall be obligated
to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
10.3. Taxes. Any taxes (excluding income taxes) or other
_____
similar assessments or charges payable or ruled payable by any
Governmental Authority in respect of the Loan Documents shall be paid
by the Borrower, together with interest and penalties, if any.
10.4. Headings. Section headings in the Loan Documents are for
________
convenience of reference only, and shall not govern the interpretation
of any of the provisions of the Loan Documents.
10.5. Entire Agreement. This Agreement, together with the other
________________
Loan Documents, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, on such subject matter. In the
event of any conflict between the provisions of this Agreement and
those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or
________
remedies in favor of the Administrative Agent or the Banks in any other
Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor
in favor of any party, but rather in accordance with the fair meaning
thereof.
10.6. Several Obligations. The obligations of the Banks
___________________
hereunder to make Ratable Loans are several and not joint. No Bank
shall be the partner or agent of any other (except to the extent to
which the Administrative Agent is authorized to act as such). The
failure of any Bank to perform any of its obligations hereunder shall
not relieve any other Bank from any of its obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit
upon any Person other than the parties to this Agreement and their
respective successors and assigns.
10.7. Expenses; Indemnification.
_________________________
(a) The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all costs and expenses incurred in connection
with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver,
consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney
Costs, and (b) to pay or reimburse the Administrative Agent and each
Bank for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by
the Administrative Agent or any Bank. All amounts due under this
Section 10.7 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination
of the Commitments and repayment of all other Obligations.
(b) Whether or not the transactions contemplated hereby
are consummated, the Borrower shall indemnify and hold harmless each
Administrative Agent-Related Person, each Bank and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any
and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may
at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection
with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby,
(b) any Commitment or Loan or the use or proposed use of the proceeds
therefrom, or (c) any actual or prospective claim, litigation,
investigation or proceeding by third parties relating to any of the
foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any
pending or threatened claim, investigation, litigation or proceeding)
and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that
such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses or
disbursements have resulted from the gross negligence or willful
misconduct of such Indemnitee, subject to Oregon Revised Statutes
Section 20.096 No Indemnitee shall be liable for any damages arising
from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any
liability for any indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities
in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 10.7 shall be
payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the resignation of the Administrative
Agent, the replacement of any Bank, the termination of the Commitments
and the repayment, satisfaction or discharge of all the other
Obligations.
10.8. Numbers of Documents. All statements, notices, closing
____________________
documents, and requests hereunder shall be furnished to the
Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Banks.
10.9. Accounting. Except as provided to the contrary herein,
__________
all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with
Agreement Accounting Principles. The Borrower will not make any change
in its fiscal year or in the accounting principles and methods used in
preparing its financial statements.
10.10. Severability of Provisions. Any provision of this
__________________________
Agreement and the other Loan Documents to which the Borrower is a party
that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
10.11. Nonliability of Banks. The relationship between the
_____________________
Borrower and the Banks and the Administrative Agent with respect to
this Agreement shall be solely that of borrower and lender. Neither
the Administrative Agent nor any Bank shall have any fiduciary
responsibilities to the Borrower with respect to this Agreement.
Neither the Administrative Agent nor any Bank undertakes under this
Agreement any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's
business or operations.
10.12. Confidentiality. Each of the Administrative Agent and the
_______________
Banks agrees to maintain the confidentiality of the Information (as
defined below); except that Information may be disclosed (a) to its and
its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors who are involved with the
lending facility contemplated by this Agreement (it being understood
that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any
regulatory authority (including any bank examiner or self-regulatory
authority, such as the National Association of Insurance
Commissioners); (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (d) to any
other party hereto; (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder; (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under
this Agreement or (ii) any actual or prospective counterparty (or its
professional advisor) to any swap or derivative transaction relating to
the Borrower and its obligations; (g) with the consent of the Borrower;
or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent or any Bank on a nonconfidential
basis from a source other than the Borrower. For purposes of this
Section, "Information" means all information received from the Borrower
___________
relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Bank
on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower
________
after the date hereof, such information is clearly identified in
writing at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its
own confidential information. Notwithstanding anything herein to the
contrary, "Information" shall not include, and the Administrative Agent
and each Bank may disclose without limitation of any kind, any
information with respect to the "tax treatment" and "tax structure" (in
each case, within the meaning of Treasury Regulation Section 1.6011-4)
of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or such Bank relating to such tax treatment and
tax structure; provided that with respect to any document or similar
item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other
information, this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or tax
structure of the Loans and transactions contemplated hereby.
10.13. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
_____________
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF OREGON BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
10.14. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
_______________________
SUBMITS TO THE NON?EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR OREGON STATE COURT SITTING IN PORTLAND, OREGON IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF ANY ADMINISTRATIVE AGENT OR ANY BANK TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
10.15. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
____________________
AGENT AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
10.16. OREGON LEGAL NOTICE. UNDER OREGON LAW, MOST AGREEMENTS,
___________________
PROMISES AND COMMITMENTS MADE BY US AFTER THE EFFECTIVE DATE OF THIS
ACT CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE
SIGNED BY US TO BE ENFORCEABLE. THE TERM "THIS ACT" MEANS CHAPTER 967
OREGON LAWS 1989. THE TERM "US" MEANS THE ADMINISTRATIVE AGENT AND THE
BANKS. THE EFFECTIVE DATE OF THIS ACT IS OCTOBER 3, 1989.
10.17. Counterparts. This Agreement may be executed in any
____________
number of counterparts, all of which taken together shall constitute
one agreement, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
ARTICLE XI
THE ADMINISTRATIVE AGENT
________________________
11.1. Appointment and Authorization of Administrative Agent.
_____________________________________________________
Each Bank hereby irrevocably, subject to Section 11.9, appoints,
designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or any
other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative
Agent have or be deemed to have any fiduciary relationship with any
Bank or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other
Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
11.2. Delegation of Duties. The Administrative Agent may
____________________
execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
11.3. Liability of Administrative Agent. No Administrative
_________________________________
Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct in
connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Bank or participant for any recital,
statement, representation or warranty made by Borrower or any
Subsidiary or Affiliate of the Borrower, or any officer thereof,
contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document, or for any failure of Borrower or any other party
to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any
obligation to any Bank or participant to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of Borrower or any of its Subsidiaries
or Affiliates thereof.
11.4. Reliance by Administrative Agent.
________________________________
(a) The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to Borrower),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of
the Majority Banks as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Majority Banks (or such greater number
of Banks as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall
be binding upon all the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 4.1, each Bank that has signed this
Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter required thereunder
to be consented to or approved by or acceptable or satisfactory to a
Bank unless the Administrative Agent shall have received notice from
such Bank prior to the proposed Closing Date specifying its objection
thereto.
11.5. Notice of Default. The Administrative Agent shall not be
_________________
deemed to have knowledge or notice of the occurrence of any Default or
Unmatured Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative
Agent for the account of the Banks, unless the Administrative Agent
shall have received written notice from a Bank or the Borrower
referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will
notify the Banks of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Default as may be
directed by the Majority Banks in accordance with Article VIII;
provided, however, that unless and until the Administrative Agent has
________ _______
received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable or in
the best interest of the Banks.
11.6. Credit Decision; Disclosure of Information by
_____________________________________________
Administrative Agent. Each Bank acknowledges that no Administrative
____________________
Agent-Related Person has made any representation or warranty to it, and
that no act by the Administrative Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of
Borrower and its Subsidiaries or Affiliates thereof, shall be deemed to
constitute any representation or warranty by any Administrative Agent-
Related Person to any Bank as to any matter, including whether
Administrative Agent-Related Persons have disclosed material
information in their possession. Each Bank represents to the
Administrative Agent that it has, independently and without reliance
upon any Administrative Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower hereunder. Each Bank
also represents that it will, independently and without reliance upon
any Administrative Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to
make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the
Banks by the Administrative Agent herein, the Administrative Agent
shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness
of Borrower or any of its Affiliates which may come into the possession
of any Administrative Agent-Related Person.
11.7. Indemnification of Administrative Agent. Whether or not
_______________________________________
the transactions contemplated hereby are consummated, the Banks shall
indemnify upon demand each Administrative Agent-Related Person (to the
extent not reimbursed by or on behalf of Borrower and without limiting
the obligation of Borrower to do so), pro rata, and hold harmless each
Administrative Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Bank
________ _______
shall be liable for the payment to any Administrative Agent-Related
Person of any portion of such Indemnified Liabilities to the extent
determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Administrative Agent-Related
Person's own gross negligence or willful misconduct; provided, however,
________ _______
that no action taken in accordance with the directions of the Majority
Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the
foregoing, each Bank shall reimburse the Administrative Agent upon
demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrower. The undertaking in this
Section shall survive termination of the Commitments, the payment of
all other Obligations and the resignation of the Administrative Agent.
11.8. Administrative Agent in Individual Capacity. Bank of
___________________________________________
America and its Affiliates may make loans to, accept deposits from,
acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with
Borrower and its Affiliates as though Bank of America were not the
Administrative Agent hereunder and without notice to or consent of the
Banks. The Banks acknowledge that, pursuant to such activities, Bank
of America or its Affiliates may receive information regarding Borrower
or its Affiliates (including information that may be subject to
confidentiality obligations in favor of Borrower or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation
to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement
as any other Bank and may exercise such rights and powers as though it
were not the Administrative Agent, and the terms "Bank" and "Banks"
include Bank of America in its individual capacity.
11.9. Successor Administrative Agent. The Administrative Agent
______________________________
may, and at the request of the Majority Banks shall, resign as
Administrative Agent upon 30 days' notice to the Banks. If the
Administrative Agent resigns under this Agreement, the Majority Banks
shall appoint from among the Banks a successor administrative agent for
the Banks, which successor administrative agent shall be consented to
by the Borrower at all times other than during the existence of an
Default (which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after
consulting with the Banks and the Borrower, a successor administrative
agent from among the Banks. Upon the acceptance of its appointment as
successor administrative agent hereunder, the Person acting as such
successor administrative agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this
Article XI and Section 10.7 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement. If no successor administrative agent has
accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation,
the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the
duties of the Administrative Agent hereunder until such time, if any,
as the Majority Banks appoint a successor agent as provided for above.
11.10. Foreign Banks. Each Bank that is a "foreign corporation,
_____________
partnership or trust" within the meaning of the Code shall deliver to
the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an
interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Person and entitling
it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Person by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by the Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Person is entitled to an exemption from,
or reduction of, U.S. withholding tax. Thereafter and from time to
time, each such Person shall, to the extent it may lawfully do so, (a)
promptly submit to the Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any
available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Person by the
Borrower pursuant to this Agreement, (b) promptly notify the
Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction, and (c) take such
steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Bank, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Person. If such
Person, to the extent it may lawfully do so, fails to deliver the above
forms or other documentation, then the Administrative Agent may
withhold from any interest payment to such Person an amount equivalent
to the applicable withholding tax imposed by Sections 1441 and 1442 of
the Code, without reduction. If any Governmental Authority asserts
that the Administrative Agent did not properly withhold any tax or
other amount from payments made in respect of such Person, such Person
shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, and
costs and expenses (including Attorney Costs) of the Administrative
Agent. The obligations of the Banks under this Section shall survive
the payment of all Obligations and the resignation or replacement of
the Administrative Agent.
11.11. Administrative Agent May File Proofs of Claim. In case of
_____________________________________________
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to Borrower, the Administrative Agent (irrespective
of whether the principal of any Loan shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the
Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the Loans and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims
of the Banks and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Banks and the Administrative Agent and their respective agents and
counsel and all other amounts due the Banks and the Administrative
Agent under Sections 2.4 and 10.7 allowed in such judicial proceeding;
and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Bank to make such payments to the
Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Banks, to
pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts
due the Administrative Agent under Sections 2.4 and 10.7.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on
behalf of any Bank any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Bank or
to authorize the Administrative Agent to vote in respect of the claim
of any Bank in any such proceeding.
11.12. Other Agents; Co-Lead Arrangers. None of the Persons
_______________________________
identified in this Agreement as a "Syndication Agent," "Co-
Documentation Agent" or "Co-Arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Banks as such. Without limiting the
foregoing, none of the Persons so identified shall have or be deemed to
have any fiduciary relationship with any Bank. Each Bank acknowledges
that it has not relied, and will not rely, on any of the Persons so
identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
________________________
12.1. Setoff. In addition to any rights and remedies of the
______
Banks provided by law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs and is
continuing, each Bank is authorized at any time and from time to time,
without prior notice to the Borrower, any such notice being waived by
the Borrower to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at
any time owing by, such Bank to or for the credit or the account of the
Borrower against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Administrative
Agent or such Bank shall have made demand under this Agreement or any
other Loan Document and although such Obligations may be contingent or
unmatured. Each Bank agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by
such Bank; provided, however, that the failure to give such notice
________ _______
shall not affect the validity of such set-off and application.
12.2. Ratable Payments. If any Bank, whether by setoff or
________________
otherwise, has payment made to it upon its Loans in a greater
proportion than that received by any other Bank (except as specifically
contemplated by the terms of this Agreement), such Bank agrees,
promptly upon demand, to purchase a portion of the Loans held by the
other Banks so that after such purchase each Bank will hold its ratable
proportion of Loans. If any Bank, whether in connection with setoff or
amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts
which may be subject to set off, such Bank agrees, promptly upon
demand, to take such action necessary such that all Banks share in the
benefits of such collateral ratably in proportion to their Loans. In
case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made. Nothing in this Section
shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and apply the amount subject to such exercise
to the payment of indebtedness of the Borrower other than the
Obligations.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
_________________________________________________
13.1 Successors and Assigns.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Bank
and no Bank may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section or (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Bank may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided that (i) except in the case of
an assignment of the entire remaining amount of the assigning Bank's
Commitment and the Loans at the time owing to it or in the case of an
assignment to a Bank or an Affiliate of a Bank or an Approved Fund (as
defined in subsection (g) of this Section) with respect to a Bank, the
aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $10,000,000 unless each of the
Administrative Agent and, so long as no Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to
be unreasonably withheld or delayed); (ii) each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Bank's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of Competitive Bid
Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent, which approval shall not be unreasonably withheld
or delayed, unless the Person that is the proposed assignee is itself a
Bank or an Affiliate of a Bank (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and (iv) the parties
to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500. Subject to acceptance and recording thereof
by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder, if not already a party
hereto, shall become a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Bank under this Agreement, and the
assigning Bank thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.1, 3.2, 3.4 and
10.7 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, the Borrower (at its
expense) shall execute and deliver a Note to the assignee Bank.
(c) The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the
Administrative Agent's Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and
addresses of the Banks, and the Commitments of, and principal amounts
of the Loans owing to, each Bank pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Banks
may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of,
or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the
Borrower or any of the Borrower's Affiliates or Subsidiaries ) (each, a
"Participant") in all or a portion of such Bank's rights and/or
obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement or instrument pursuant
to which a Bank sells such a participation shall provide that such Bank
shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this
Agreement. Subject to subsection (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.2 and 3.4 to the same extent as if it were a Bank and
had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 12.1 as though it were a
Bank, provided such Participant agrees to be subject to Section 12.2 as
though it were a Bank.
(e) A Participant shall not be entitled to receive any
greater payment under Section 3.1 or 3.4 than the applicable Bank would
have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Bank if it were a Bank shall not be
entitled to the benefits of Section 3.1 unless the Borrower is notified
of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.10
as though it were a Bank.
(f) Any Bank may at any time pledge or assign a
security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of
such Bank, including any pledge or assignment to secure obligations to
a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party
hereto.
(g) As used herein, the following terms have the
following meanings:
"Eligible Assignee" means (a) a Bank; (b) an Affiliate of a Bank; (c)
an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, and (ii) unless a
Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include
the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business.
"Approved Fund" means any Fund that is administered or managed by (a) a
Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an
entity that administers or manages a Bank.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the Borrower, the Banks and the Administrative
Agent have executed this Agreement as of the date first above written.
NIKE, INC., as the Borrower
By: ______________________________
Xxxxxx X. Xxxxxxxx
Treasurer
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA N.A.,
as Administrative Agent
By: _______________________________
Xxxxx Xxxxxx
Assistant Vice President
BANK OF AMERICA N.A.,
as a Bank
By: _______________________________
J. Xxxxx Xxxxxxxx
Vice President
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Bank of America N.A.
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Credit Services Rep.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
Send All Other Notices to:
_________________________
Bank of America N.A.
Mail Code: CA5-701-05-19
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxx.xxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Bank of America, N.A.
Mail Code: IL1-231-10-06
000 X. Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxxxx, Vice President
CITICORP USA, INC.,
as Syndication Agent and as a Bank
By: ________________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Citibank, N.A.
Two Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx, Loan
Administrator
Tel: (000) 000-0000
Fax: (000) 000-0000
Send All Other Notices to:
_________________________
Citicorp North America.
000 X. 0xx Xx., 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Managing Director
Tel: (000) 000-0000
Fax: (000) 000-0000
HSBC BANK USA,
as Co-Documentation Agent and as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
HSBC Bank USA
0 XXXX Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, Loan Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
HSBC Bank USA
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Bollington, Senior Vice
President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Co-Documentation Agent and as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
The Bank of Tokyo-Mitsubishi, Ltd.
0000 Xxxxxxx Xxxxxx
0000 X. X. Xxxxx Xxx.
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Vice President and
Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
The Bank of Tokyo-Mitsubishi, Ltd.
0000 Xxxxxxx Xxxxxx
0000 X. X. Xxxxx Xxx.
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Vice President and Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DEUTSCHE BANK AG NEW YORK BRANCH,
as Co-Documentation Agent and as a Bank
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Deutsche Bank AG New York Branch
00 Xxxxxx Xxxxxx (Mailstop JCY05-0511)
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/2314
Send All Other Notices to:
_________________________
Deutsche Bank AG New York Branch
00 Xxxxxx Xxxxxx (Mailstop JCY05-0511)
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/2314
BANK ONE, NA
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Bank One, NA
131 South Dearborn
IL1-0010
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Bank One, NA
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx-Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
Bank One, NA
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ROYAL BANK OF CANADA,
as a Bank
By: _______________________________
Name:
Title:
Send All Notices to:
___________________
Royal Bank of Canada
New York Branch
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Manager, Loans Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copies to:
Royal Bank of Canada
New York Branch
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Credit and Transaction Management
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Royal Bank of Canada
New York Branch
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE NORTHERN TRUST COMPANY,
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
The Northern Trust Company
00 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxx Honda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
The Northern Trust Company
00 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxx Honda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION,
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
U.S. Bank National Association
000 X. X. Xxx Xx., XX-XX-X0XX, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
U.S. Bank National Association
000 X. X. Xxx Xx., XX-XX-X0XX, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Participation
Specialist
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX FARGO BANK, N.A.,
as a Bank
By: _______________________________
Xxxxxx X. Xxxxxxxx
Senior Vice President
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Xxxxx Fargo Bank, N.A.
000 X.X. 5th Avenue, 7th Floor
MAC P6101-076
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Xxxxx Fargo Bank, N.A.
MAC: A0187-081
000 Xxxxx Xx.
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Vice President and
Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WESTPAC BANKING CORPORATION,
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Westpac Banking Corporation
000 Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Head of Relationship
Management
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Westpac Banking Corporation
000 Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Head of Relationship
Management
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
Westpac Banking Corporation
000 Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Vice President &
Legal Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FLEET NATIONAL BANK,
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Fleet National Bank
Two Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx, Sr. Vice
President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Fleet National Bank
Two Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attn: Xxx Xxx, Loan Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
Xxxxxxx, Xxxxx & Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Partner
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXXX XXXXX BANK USA,
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Xxxxxxx Xxxxx Bank USA
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx, Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
Xxxxxxx Xxxxx Bank USA
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 4101
Attn: Xxxxx Xxxxx, Manager Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE ROYAL BANK OF SCOTLAND PLC
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
The Royal Bank of Scotland PLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
The Royal Bank of Scotland PLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Senior Vice
President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DANSKE BANK A/S, CAYMAN BRANCH
as a Bank
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Danske Bank A/S, Cayman Branch
x/x Xxxxxx Xxxx X/X, Xxx Xxxx Branch
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Loan Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Danske Bank A/S, Cayman Branch
x/x Xxxxxx Xxxx X/X, Xxx Xxxx Branch
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Vice
President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANCO SANTANDER CENTRAL HISPANO,
NEW YORK BRANCH
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Banco Santander Central Hispano, New York
Branch
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Banco Santander Central Hispano, New York
Branch
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
Banco Santander Central Hispano, New York
Branch
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx, Assistant Vice
President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/3638
CREDIT LYONNAIS NEW YORK BRANCH
as a Bank
By: _______________________________
Name:
Title:
Send Notices for Advances/Conversions/Continuations to:
______________________________________________________
Credit Lyonnais New York Branch
000 X. Xxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Send All Other Notices to:
_________________________
Credit Lyonnais New York Branch
000 X. Xxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
