EXHIBIT 10.18
-------------
$350,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
November 21, 1996
among
Consolidated Freightways, Inc.
(to be renamed CNF Transportation, Inc.)
The Banks Party Hereto
ABN-AMRO Bank, N.V.,
Bank of America National Trust and Savings Association,
The First National Bank of Chicago
and
Xxxxxx Guaranty Trust Company of New York,
as LC Issuing Banks
ABN-AMRO Bank, N.V.,
Bank of America National Trust and Savings Association
and
The First National Bank of Chicago,
as Co-Agents
and
Xxxxxx Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS
Page
ARTICLE 1 Definitions
Section 1.01. Definitions 2
Section 1.02. Accounting Terms and Determinations 18
Section 1.03. Types of Borrowings 18
ARTICLE 2 The Credits
Section 2.01. Commitments to Lend 19
Section 2.02. Notice of Committed Borrowing 19
Section 2.03. Money Market Borrowings 20
Section 2.04. Notice to Banks; Funding of Loans 24
Section 2.05. Notes 25
Section 2.06. Maturity of Loans 25
Section 2.07. Interest Rates 25
Section 2.08. Facility Fee 29
Section 2.09. Optional Termination or Reduction of
Commitments 30
Section 2.10. Method of Electing Interest Rates 30
Section 2.11. Mandatory Termination of Commitments 31
Section 2.12. Optional Prepayments 32
Section 2.13. General Provisions as to Payments 32
Section 2.14. Funding Losses 33
Section 2.15. Computation of Interest and Fees 33
Section 2.16. Letters of Credit 33
Section 2.17. Maximum Interest Rate 40
ARTICLE 3 Conditions
Section 3.01. Conditions to Effectiveness 41
Section 3.02. Consequence of Effectiveness 42
Section 3.03. Credit Extensions 42
ARTICLE 4 Representations and Warranties
Section 4.01. Corporate Existence and Power 43
Section 4.02. Corporate and Governmental
Authorization; No Contravention 43
Section 4.03. Binding Effect 44
Section 4.04. Financial Information 44
Section 4.05. Litigation 45
Section 4.06. Compliance with ERISA 45
Section 4.07. Environmental Matters 45
Section 4.08. Taxes 46
Section 4.09. Subsidiaries 46
Section 4.10. Not an Investment Company 46
Section 4.11. Full Disclosure 46
Section 4.12. Spin-Off 47
ARTICLE 5 Covenants
Section 5.01. Information 47
Section 5.02. Payment of Obligations 49
Section 5.03. Maintenance of Property; Insurance 49
Section 5.04. Conduct of Business and Maintenance of
Existence 50
Section 5.05. Compliance with Laws 50
Section 5.06. Inspection of Property, Books and
Records 50
Section 5.07. Debt 51
Section 5.08. Minimum Consolidated Net Worth 52
Section 5.09. Negative Pledge 52
Section 5.10. Consolidations, Mergers and Sales of
Assets 54
Section 5.11. Use of Proceeds 55
Section 5.12. Fixed Charge Coverage 55
Section 5.13. Transactions with Third Party Affiliates
55
ARTICLE 6 Defaults
Section 6.01. Events of Default 56
Section 6.02. Notice of Default 59
Section 6.03. Cash Cover 59
ARTICLE 7 The Agent and the Co-Agents
Section 7.01. Appointment and Authorization 59
Section 7.02. Agent and Affiliates 59
Section 7.03. Action by Agent 59
Section 7.04. Consultation with Experts 60
Section 7.05. Liability of Agent 60
Section 7.06. Indemnification 60
Section 7.07. Credit Decision 60
Section 7.08. Successor Agent 61
Section 7.09. Agent=s Fee 61
Section 7.10. Co-Agents 61
ARTICLE 8 Change in Circumstances
Section 8.01. Basis for Determining Interest Rate
Inadequate or Unfair 61
Section 8.02. Illegality 62
Section 8.03. Increased Cost and Reduced Return 63
Section 8.04. Taxes 64
Section 8.05. Base Rate Loans Substituted for Affected
Fixed Rate Loans 66
Section 8.06. Substitution of Banks 67
ARTICLE 9 Miscellaneous
Section 9.01. Notices 68
Section 9.02. No Waivers 68
Section 9.03. Expenses; Indemnification 69
Section 9.04. Sharing of Set-offs 69
Section 9.05. Amendments and Waivers 70
Section 9.06. Successors and Assigns 70
Section 9.07. Collateral 72
Section 9.08. Governing Law; Submission to
Jurisdiction 72
Section 9.09. Counterparts; Integration 72
Section 9.10. Waiver of Jury Trial 73
Section 9.11. Confidentiality 73
Commitment Schedule
AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of November 21, 1996 among
CONSOLIDATED FREIGHTWAYS, INC., the BANKS party hereto,
ABN-AMRO BANK, N.V., BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, THE FIRST NATIONAL BANK OF CHICAGO
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as LC
Issuing Banks, ABN-AMRO BANK, N.V., BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION and THE FIRST
NATIONAL BANK OF CHICAGO, as Co-Agents, and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
WHEREAS, the Borrower, the banks referred to
therein and Xxxxxx Guaranty Trust Company of New York,
as Agent for such banks, are parties to an Amended and
Restated Credit Agreement dated as of January 10, 1995
under which both loans and letters of credit are
available to the Borrower on the terms and conditions
provided therein;
WHEREAS, The Long-Term Credit Bank of Japan, Ltd.
and First Interstate Bank of Oregon, N.A. (the
"Terminating Banks") desire to terminate their
commitments and participations in letters of credit
under said Credit Agreement;
WHEREAS, the other parties thereto desire to amend
and restate said Credit Agreement as provided in this
Agreement and, upon satisfaction of the conditions
specified in Section 3.01, said Credit Agreement will
be so amended and restated;
WHEREAS, The Bank of New York and NationsBank of
Texas, N.A. (the "New Banks") desire to become parties
to said Credit Agreement (as so amended and restated)
as Banks with Commitments and participations in letters
of credit as provided herein;
WHEREAS, in order to induce the Banks, the LC
Issuing Banks, the Co-Agents and the Agent to enter
into this Agreement, certain Subsidiaries of the
Borrower are willing to guaranty the obligations of the
Borrower under this Agreement and the Notes issued
pursuant hereto; and
WHEREAS, the Banks are willing to make loans to
the Borrower and the LC Issuing Banks are willing to
issue letters of credit at the request of the Borrower
on the terms and conditions provided herein;
NOW, THEREFORE, the parties hereto agree as
follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the
form prepared by the Agent and submitted to the Agent
(with a copy to the Borrower) duly completed by such
Bank.
"Agent" means Xxxxxx Guaranty Trust Company of New
York in its capacity as agent for the Banks and the LC
Issuing Banks under the Financing Documents, and its
successors in such capacity.
"Aggregate Usage" means, at any time, the sum of
(i) the aggregate outstanding principal amount of the
Loans at such time plus (ii) the aggregate outstanding
amount of the LC Liabilities at such time.
"Agreement", when used with reference to this
Agreement, means this Amended and Restated Credit
Agreement dated as of November 21, 1996, as it may be
amended from time to time.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and
(iii) in the case of its Money Market Loans, its Money
Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank
pursuant to Section 9.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day
and (ii) the sum of 2 of 1% plus the Federal Funds Rate
for such day.
"Base Rate Loan" means a Committed Loan which
bears interest at the Base Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or pursuant to Section 2.10(c)
or Article 8.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer
Plan and which is maintained or otherwise contributed
to by any member of the ERISA Group.
"Borrower" means Consolidated Freightways, Inc., a
Delaware corporation, and its successors.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means a Committed Loan which bears
interest at a CD Rate pursuant to the applicable Notice
of Committed Borrowing or Notice of Interest Rate
Election.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"CD Rate" means a rate of interest determined
pursuant to Section 2.07(b) on the basis of an Adjusted
CD Rate.
"CD Reference Banks" means Bank of America
National Trust and Savings Association, The First
National Bank of Chicago and Xxxxxx Guaranty Trust
Company of New York.
"Co-Agents" means ABN-AMRO Bank, N.V., Bank of
America National Trust and Savings Association and The
First National Bank of Chicago, in their capacities as
co-agents hereunder.
"Commitment" means, as the context requires,
either (a) the commitment of a Bank to extend credit to
the Borrower hereunder or (b) the amount of such
commitment, which is (i) with respect to any Bank
listed on the Commitment Schedule, the amount set forth
opposite the name of such Bank on the Commitment
Schedule or (ii) with respect to any Assignee, the
amount of the transferor Bank=s Commitment assigned to
such Assignee pursuant to Section 9.06(c), in each case
as such amount may be reduced from time to time
pursuant to Section 2.09 or 2.11 or changed as a result
of an assignment pursuant to Section 9.06(c).
"Commitment Schedule" means the Commitment
Schedule attached hereto.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01; provided that, if any such
loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate
Election, the term "Committed Loan" shall refer to the
combined principal amount resulting from such
combination or to each of the separate principal
amounts resulting from such subdivision, as the case
may be.
"Consolidated Debt" means at any date the Debt of
the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date.
"Consolidated EBITDAR" means, for any period, the
sum of (i) the consolidated income before income taxes
of the Borrower and its Consolidated Subsidiaries for
such period plus (ii) to the extent deducted in
determining such consolidated income before income
taxes, the sum of (A) Consolidated Interest Expense,
(B) depreciation and amortization and (C) Consolidated
Rental Expense, provided that, for any period or
portion of a period prior to the Spin-Off, Consolidated
EBITDAR shall be calculated on a pro forma basis
assuming that the Spin-Off and related distribution of
shares had occurred prior to that period.
"Consolidated Fixed Charges" means, for any
period, the sum of Consolidated Interest Expense and
Consolidated Rental Expense for such period, provided
that, for any period or portion of a period prior to
the Spin-Off, Consolidated Fixed Charges shall be
calculated on a pro forma basis assuming that the Spin-
Off and related distribution of shares had occurred
prior to that period.
"Consolidated Interest Expense" means, for any
period, the interest expense of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated
basis for such period.
"Consolidated Net Worth" means at any date the
consolidated shareholders= equity of the Borrower and
its Consolidated Subsidiaries determined as of such
date.
"Consolidated Rental Expense" means, for any
period, the rental expense for operating leases of the
Borrower and its Consolidated Subsidiaries determined
on a consolidated basis for such period.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would
be consolidated with those of the Borrower in its
consolidated financial statements if such statements
were prepared as of such date.
"Continuing Director" means (i) any individual who
is a director of the Borrower on November 21, 1996 and
(ii) any individual who becomes a director of the
Borrower after November 21, 1996 and is elected or
nominated for election as a director of the Borrower by
a majority of the individuals who were Continuing
Directors immediately before such election or
nomination.
"Credit Extension" means the making of a Loan or
the issuance or extension of a Letter of Credit.
"Debt" of any Person means at any date, without
duplication,
(i) all obligations of such Person for
borrowed money,
(ii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar
instruments,
(iii) all obligations of such Person to pay
the deferred purchase price of property or
services, except trade accounts payable arising in
the ordinary course of business,
(iv) all obligations of such Person as lessee
which are capitalized in accordance with generally
accepted accounting principles,
(v) all obligations of such Person to
reimburse banks for drawings under letters of
credit or payments with respect to bankers=
acceptances, which obligations remain unpaid for
more than three Domestic Business Days after they
become due, or, if later, after such Person is
notified of the due date thereof,
(vi) all obligations of the types referred to
in clauses (i) to (v), inclusive, of this
definition which are secured by a Lien on any
asset of such Person, whether or not such
obligations are otherwise obligations of such
Person; provided that the amount of Debt
attributed, for purposes of this Agreement, to any
such obligation that is not otherwise an
obligation of such Person shall be limited to the
lesser of (x) the net book value of the assets of
such Person by which such obligation is secured or
(y) the amount of such obligation secured thereby
(excluding accrued interest for the current
period); and
(vii) all Guarantees by such Person of
obligations of others of the types referred to in
clauses (i) to (v), inclusive, of this definition
(which Guarantees shall be deemed to constitute
Debt in an amount equal to the lesser of (x) the
maximum amount of such Guarantee and (y) the
amount of such obligation of others Guaranteed
thereby).
"Default" means any condition or event which
constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks
in New York City are authorized by law to close;
provided that, when used in Section 2.16 with reference
to any LC Issuing Bank, the term "Domestic Business
Day" shall not include any day on which commercial
banks are authorized to close in the jurisdiction where
the LC Office of such LC Issuing Bank is located.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to
the Borrower and the Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its
Base Rate Loans, on the one hand, and its CD Loans, on
the other hand, in which case all references herein to
the Domestic Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as
the context may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Xxxxx Receivables Facility" means the Credit
Agreement dated January 14, 1993, as amended, among
Xxxxx Receivables Corporation, Xxxxx Air Freight
Corporation, Consolidated Freightways, Inc. and the
financial institutions referred to therein.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements
and other governmental restrictions relating to the
environment, the effect of the environment on human
health or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without
limitation, ambient air, surface water, ground water,
or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor
statute.
"ERISA Group" means the Borrower, any Subsidiary
and 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 of the Internal Revenue
Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each
Bank, its office, branch or affiliate located at its
address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as
its Euro-Dollar Lending Office) or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan which
bears interest at a Euro-Dollar Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest
determined pursuant to Section 2.07(c) on the basis of
a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal
London offices of ABN-AMRO Bank, N.V., The First
National Bank of Chicago and Xxxxxx Guaranty Trust
Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
"Event of Default" has the meaning set forth in
Section 6.01.
"Existing Agreement" means the Amended and
Restated Credit Agreement dated as of January 10, 1995
among the Borrower, the banks referred to therein, and
Xxxxxx Guaranty Trust Company of New York, as Agent, as
in effect from time to time prior to the Effective
Date.
"Existing Bank" means a "Bank" (as such term is
defined in the Existing Agreement) that is a party to
the Existing Agreement immediately prior to the
Effective Date.
"Existing Letters of Credit" means the letters of
credit issued on or before the Effective Date and
either (i) listed in Exhibit J hereto or (ii) issued
after the date hereof under (and in accordance with the
provisions of) the Existing Agreement.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal
Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day
is not a Domestic Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on
the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day,
and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to
Xxxxxx Guaranty Trust Company of New York on such day
on such transactions as determined by the Agent.
"Financing Documents" means this Agreement, the
Subsidiary Guaranty Agreement and the Notes.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market
LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the
foregoing.
"Group of Loans" means at any time a group of
Loans consisting of (i) all Committed Loans which are
Base Rate Loans at such time or (ii) all Committed
Loans which are Fixed Rate Loans of the same type
having the same Interest Period at such time; provided
that, if a Committed Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to
Section 8.02 or 8.04, such Loan shall be included in
the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted
or made.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing,
any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Debt
of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Hazardous Substances" means any toxic,
radioactive, caustic or otherwise hazardous substance,
including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any
constituent elements displaying any of the foregoing
characteristics.
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Insignificant Subsidiaries" means Subsidiaries
which, if aggregated and considered as a single
Subsidiary, would not have total assets, shareholders=
equity or revenues in excess of 10% of the consolidated
total assets, consolidated shareholders= equity or
consolidated revenues, respectively, of the Borrower
and its Consolidated Subsidiaries, all calculated at
the date of the most recent financial statements
delivered to the Banks pursuant to Section 5.01 or, in
the case of revenues, for the twelve calendar months
then ended; provided that, prior to the delivery of
such financial statements for the year ending December
31, 1996, such amounts shall be calculated on the basis
of the pro forma balance sheet as of June 30, 1996 and
the pro forma statement of income for the six months
then ended set forth in the Borrower=s current report
on Form 8-K dated August 26, 1996.
"Interest Period" means: (a) with respect to each
Euro-Dollar Loan, the period commencing on the date of
borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two,
three or six months thereafter, as the Borrower may
elect in the applicable notice; provided that:
(i) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in
which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(ii) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month
(or on a day for which there is no numerically
corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause
(iii) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(iii) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date.
(b) with respect to each CD Loan, the period
commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified
in the applicable Notice of Interest Rate Election and
ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable notice; provided
that:
(i) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(ii) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date.
(c) with respect to each Money Market LIBOR
Loan, the period commencing on the date of borrowing
specified in the applicable Notice of Borrowing and
ending one week, two weeks, three weeks or any whole
number of months thereafter, as the Borrower may elect
in accordance with Section 2.03; provided that:
(i) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in
which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(ii) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month
(or on a day for which there is no numerically
corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause
(iii) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(iii) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date; and
(d) with respect to each Money Market Absolute
Rate Loan, the period commencing on the date of
borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter
(but not less than seven days) as the Borrower may
elect in accordance with Section 2.03; provided that:
(i) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(ii) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Investment" means any investment in any Person,
whether by means of share purchase, capital
contribution, loan or otherwise.
"LC Issuing Banks" means ABN-AMRO Bank, N.V., Bank
of America National Trust and Savings Association, The
First National Bank of Chicago and Xxxxxx Guaranty
Trust Company of New York, in their capacities as
issuers of Letters of Credit.
"LC Liabilities" means, at any time, the sum,
without duplication, of (i) the aggregate amount
available for drawing under all Letters of Credit
outstanding at such time plus (ii) the aggregate unpaid
amount at such time of all Reimbursement Obligations in
respect of previous drawings made under Letters of
Credit.
"LC Office" means, with respect to each LC Issuing
Bank, the office at which it books the Letters of
Credit issued by it hereunder.
"LC Payment Date" has the meaning set forth in
Section 2.16(f).
"LC Reimbursement Date" means, with respect to any
Letter of Credit, an LC Payment Date applicable to such
Letter of Credit, or, if later, the Domestic Business
Day next succeeding the Domestic Business Day on which
the Agent shall have notified the Borrower of such LC
Payment Date and of the amount payable by the LC
Issuing Bank under such Letter of Credit on such LC
Payment Date.
"Letter of Credit" means (i) any Existing Letter
of Credit and (ii) any financial stand-by letter of
credit (including without limitation a Workers=
Compensation Letter of Credit) issued hereunder after
the Effective Date.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based
on the London Interbank Offered Rate pursuant to
Section 2.03.
"Lien" means (i) with respect to any asset
(including without limitation any account receivable),
any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect
of creating a security interest, in respect of such
asset and (ii) with respect to any account receivable,
any sale of such account receivable. For the purposes
of this Agreement, the Borrower or any Subsidiary shall
be deemed (x) to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement
relating to such asset and (y) not to own subject to a
Lien any asset which it leases under a lease that is
classified as an operating lease under generally
accepted accounting principles.
"Loan" means a Domestic Loan, a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic
Loans, Euro-Dollar Loans or Money Market Loans or any
combination of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Commitments" means commitments to extend
credit which, if extended, would constitute Debt of the
Borrower and/or one or more of its Subsidiaries in an
aggregate amount exceeding $35,000,000. For purposes
of this definition, any commitment for less than
$1,000,000 shall be excluded, but commitments arising
from one or more related or unrelated transactions
shall be aggregated if each such commitment is for
$1,000,000 or more.
"Material Debt" means Debt (other than the Notes)
of the Borrower and/or one or more of its Subsidiaries
in an aggregate outstanding principal amount exceeding
$35,000,000. For purposes of this definition, if the
Debt arising from any single transaction has an
outstanding principal amount less than $1,000,000, it
shall be excluded, but Debts arising from one or more
related or unrelated transactions shall be aggregated
if the Debt arising from each such transaction has an
outstanding principal amount of $1,000,000 or more.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$35,000,000.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice
to the Borrower and the Agent; provided that any Bank
may from time to time by notice to the Borrower and the
Agent designate separate Money Market Lending Offices
for its Money Market LIBOR Loans, on the one hand, and
its Money Market Absolute Rate Loans, on the other
hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to
refer to either or both of such offices, as the context
may require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a
loan bearing interest at the Base Rate pursuant to
Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section
2.03.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA
Group is then making or accruing an obligation to make
contributions or has within the preceding five plan
years made contributions, including for these purposes
any Person which ceased to be a member of the ERISA
Group during such five year period.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto,
evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory
notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of
Money Market Borrowing (as defined in Section 2.03(f)).
"Notice of Interest Rate Election" has the meaning
set forth in Section 2.10.
"Obligor" means each of the Borrower and the
Subsidiary Guarantors, and "Obligors" means all of the
foregoing.
"Outstanding Credit Exposure" means, as to any
Bank at any time, the sum of (i) the aggregate
principal amount of its Loans outstanding at such time
plus (ii) its Outstanding LC Exposure at such time.
"Outstanding LC Exposure" means, as to any Bank at
any time, an amount equal to its Percentage of the LC
Liabilities at such time.
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of
its functions under ERISA.
"Percentage" means, with respect to each Bank, the
percentage that such Bank=s Commitment constitutes of
the aggregate amount of the Commitments.
"Person" means an individual, a corporation, a
limited liability company, a partnership, an
association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or
contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has
at any time within the preceding five years been
maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the
ERISA Group.
"Pricing Schedule" means the Pricing Schedule
attached hereto.
"Prime Rate" means the rate of interest publicly
announced by Xxxxxx Guaranty Trust Company of New York
in New York City from time to time as its Prime Rate.
"Quarterly Dates" means each March 31, June 30,
September 30 and December 31.
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may
require, and "Reference Bank" means any one of such
Reference Banks.
"Reimbursement Obligations" means, at any time,
the aggregate of all obligations of the Borrower then
outstanding under Section 2.16 to reimburse an LC
Issuing Bank for amounts paid by such LC Issuing Bank
in respect of any drawing under any Letter of Credit.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Required Banks" means at any time Banks having at
least 60% of the aggregate amount of the Commitments
or, if the Commitments shall have been terminated,
having at least 60% of the aggregate amount of the
Outstanding Credit Exposures.
"Spin-Off" means the distribution by the Borrower
to its shareholders of 100% of the capital stock of
Consolidated Freightways Corporation (which will be the
sole shareholder of Consolidated Freightways
Corporation of Delaware and Xxxxxx Xxxxx Xxxxxxx
Corporation) substantially in the manner described in
the Registration Statement on Form 10 filed by
Consolidated Freightways Corporation with the
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended.
"Subsidiary" means any corporation or other entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board
of directors or other persons performing similar
functions are at the time directly or indirectly owned
by the Borrower.
"Subsidiary Guarantors" means Con-Way
Transportation Services, Inc., a Delaware corporation,
Con-Way Truckload Services, Inc., a Delaware
corporation, Xxxxx Air Freight Corporation, a Delaware
corporation, Xxxxx Worldwide Airlines, Inc., a Nevada
corporation, Menlo Logistics, Inc., a California
corporation, and each other Subsidiary which becomes a
party to the Subsidiary Guaranty Agreement pursuant to
Article 3 thereof, and their respective successors.
"Subsidiary Guaranty Agreement" means a Subsidiary
Guaranty Agreement among the Borrower, the Subsidiary
Guarantors and the Agent, as executed and delivered
pursuant to Section 3.01(c) and as the same may be
amended from time to time in accordance with the terms
thereof.
"TASP Notes" means (i) $55,000,000 aggregate
principal amount of the 8.50% Series A Guaranteed ESOP
Notes due January 1, 2006 and $62,000,000 aggregate
principal amount of the 8.62% Series B Guaranteed ESOP
Notes due January 1, 2009, each issued pursuant to
separate Note Agreements, each dated as of July 17,
1989, among Consolidated Freightways, Inc. Thrift and
Stock Ownership Trust ("TASP"), the Borrower and
certain institutional investors and (ii) $33,000,000
aggregate principal amount of the 9.00% Restructured
Notes due January 1, 2006, issued under separate
Restructured Note Agreements, each dated as of November
3, 1992, among TASP, the Borrower and certain
institutional investors.
"Taxes" has the meaning set forth in Section
8.04(a).
"Terminating Banks" has the meaning set forth in
the recitals hereto.
"Termination Date" means November 21, 2001, or, if
such day is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day unless such Euro-
Dollar Business Day falls in another calendar month, in
which case the Termination Date shall be the next
preceding Euro-Dollar Business Day.
"Third Party Affiliate" means (i) any Person or
any group of Persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as
amended) that directly, or indirectly through one or
more intermediaries, controls the Borrower (a
"Controlling Person") or (ii) any Person (other than
the Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person. As
used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause
the direction of the management or policies of a
Person, whether through the ownership of voting
securities, by contract or otherwise.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the
value of all benefit liabilities under such Plan,
determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but
unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to
the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or
any other Person under Title IV of ERISA.
"United States" means the United States of
America, including the States and the District of
Columbia, but excluding its territories and
possessions.
"Wholly-Owned Subsidiary" means any Subsidiary all
of the shares of capital stock or other ownership
interests of which (except directors= qualifying
shares) are at the time directly or indirectly owned by
the Borrower.
"Workers= Compensation Letter of Credit" means any
letter of credit which is used to secure obligations of
the Borrower or its Subsidiaries under workers=
compensation or similar laws.
Section 1.2. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all
financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time,
applied on a basis consistent (except for changes
concurred in by the Borrower=s independent public
accountants) with the most recent audited consolidated
financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Banks;
provided that, if the Borrower notifies the Agent that
the Borrower wishes to amend any covenant in Article 5
to eliminate the effect of any change in generally
accepted accounting principles on the operation of such
covenant (or if the Agent notifies the Borrower that
the Required Banks wish to amend Article 5 for such
purpose), then the Borrower=s compliance with such
covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately
before the relevant change in generally accepted
accounting principles became effective, until either
such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required
Banks.
Section 1.3. Types of Borrowings. The term
"Borrowing denotes the aggregation of Loans of one or
more Banks to be made to the Borrower pursuant to
Section 2.01 or 2.03 on the same date, all of which
Loans are of the same type (subject to Article 8) and,
except in the case of Base Rate Loans, have the same
Interest Period or initial Interest Period. Borrowings
are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a
Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01 in which
all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a
Borrowing under Section 2.03 in which the Bank
participants are determined on the basis of their bids
in accordance therewith).
ARTICLE 2
The Credits
Section 2.1. Commitments to Lend. Each Bank
severally agrees, on the terms and conditions set forth
in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time prior to the
Termination Date; provided that, immediately after each
such Loan is made, the sum of (i) the aggregate
outstanding principal amount of all Committed Loans
made by such Bank plus (ii) its Outstanding LC Exposure
shall not exceed its Commitment. Each Borrowing
pursuant to this Section shall be in an aggregate
principal amount of $10,000,000 or any larger integral
multiple of $1,000,000 (except that any such Borrowing
may be in the aggregate amount available in accordance
with Section 3.03(b)) and shall be made from the
several Banks ratably in accordance with their
respective Percentages. Within the foregoing limits,
the Borrower may borrow under this Section, prepay
Loans to the extent permitted by Section 2.12 and
reborrow at any time prior to the Termination Date
under this Section.
Section 2.2. Notice of Committed Borrowing. The
Borrower shall give the Agent notice (a "Notice of
Committed Borrowing") not later than (x) 12:00 Noon
(New York City time) on the date of each Base Rate
Borrowing, (y) 1:00 P.M. (New York City time) on the
second Domestic Business Day before each CD Borrowing
and (z) 1:00 P.M. (New York City time) on the third
Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(a) the date of such Borrowing, which shall be
a Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing
are to bear interest initially at the Base Rate, a
CD Rate or a Euro-Dollar Rate, and
(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of
Interest Period;
provided that the Borrower may not deliver a Notice of
Committed Borrowing if after giving effect to the
requested Borrowing there would be more than ten
Committed Fixed Rate Borrowings outstanding.
Section 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the
Borrower may, as set forth in this Section, request the
Banks to make offers to make Money Market Loans to the
Borrower on any day prior to the Termination Date. The
Banks 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.
(b) Money Market Quote Request. When the Borrower
wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Agent by
telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto
so as to be received no later than (x) 1:00 P.M. (New
York City time) on the fifth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the
case of a LIBOR Auction or (y) 11:30 A.M. (New York
City time) on the Domestic Business Day next preceding
the date of Borrowing proposed therein, in the case of
an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall
have mutually agreed and shall have notified to the
Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which
shall be a Euro-Dollar Business Day in the case of
a LIBOR Auction or a Domestic Business Day in the
case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing,
which shall be $10,000,000 or a larger integral
multiple of $1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of
the definition of Interest Period, and
(iv) whether the Money Market Quotes requested
are to set forth a Money Market Margin or a Money
Market Absolute Rate.
The Borrower may request offers to make Money Market
Loans for more than one Interest Period in a single
Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business
Days (or such other number of days as the Borrower and
the Agent may agree) of any other Money Market Quote
Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile
transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which
shall constitute an invitation by the Borrower to each
Bank to submit Money Market Quotes offering to make the
Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes.
(i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market
Quotes. Each Money Market Quote must comply with the
requirements of this subsection (d) and must be
submitted to the Agent by telex or facsimile
transmission at its offices specified in or pursuant to
Section 9.01 not later than (x) 2:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) 10:15 A.M. (New York City time) on
the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other
time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks
not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective);
provided that Money Market Quotes submitted by the
Agent (or any affiliate of the Agent) in the capacity
of a Bank may be submitted, and may only be submitted,
if the Agent or such affiliate notifies the Borrower of
the terms of the offer or offers contained therein not
later than (x) one hour prior to the deadline for the
other Banks, in the case of a LIBOR Auction or (y) 15
minutes prior to the deadline for the other Banks, in
the case of an Absolute Rate Auction. Subject to
Articles 3 and 6, any Money Market Quote so made shall
be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in
any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market
Loan for which each such offer is being made, which
principal amount (w) may be greater than or less
than the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger integral multiple of
$1,000,000, (y) may not exceed the principal amount
of Money Market Loans for which offers were
requested and (z) may be subject to an aggregate
limitation as to the principal amount of Money
Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank
Offered Rate (the AMoney Market Margin") offered for
each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000 of 1%)
to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the
nearest 1/10,000 of 1%) (the AMoney Market Absolute
Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each
Interest Period specified in the related Invitation for
Money Market Quotes.
(iii) Any Money Market Quote shall be
disregarded if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for
Money Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly
notify the Borrower of the terms (x) of any Money
Market Quote submitted by a Bank that is in accordance
with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with
a previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Agent=s
notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers
have been received for each Interest Period specified
in the related Money Market Quote Request, (B) the
respective principal amounts and Money Market Margins
or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for
which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later
than 11:30 A.M. (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually
agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall
notify the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to subsection
(e). In the case of acceptance, such notice (a ANotice
of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each
Money Market Borrowing may not exceed the
applicable amount set forth in the related Money
Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger integral
multiple of $1,000,000,
(iii) acceptance of offers may only be made on
the basis of ascending Money Market Margins or
Money Market Absolute Rates, as the case may be,
and
(iv) the Borrower may not accept any offer that
is described in subsection (d)(iii) or that
otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Agent. If offers are made by two
or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
respect of which such offers are accepted for the
related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such
Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such
offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence
of manifest error.
Section 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof
and of such Bank=s share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than (x) 12:00 Noon (New York City
time) on the date of each Borrowing other than a Base
Rate Borrowing and (y) 1:00 P.M. (New York City time)
on the date of each Base Rate Borrowing, each Bank
participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately
available in New York City, to the Agent at its address
referred to in Section 9.01. Unless the Agent
determines that any applicable condition specified in
Article 3 has not been satisfied, the Agent will,
promptly upon receipt thereof, make the funds so
received from the Banks available to the Borrower at
the Agent=s aforesaid address.
(c) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that
such Bank will not make available to the Agent such
Bank=s share of such Borrowing, the Agent may assume
that such Bank has made such share available to the
Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and
to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent, within
one Domestic Business Day after demand, such
corresponding amount together with interest thereon,
for each day from the date such amount is made
available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.07 and (ii) in the case
of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Bank=s Loan
included in such Borrowing for purposes of this
Agreement.
Section 2.5. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the
order of such Bank for the account of its Applicable
Lending Office in an amount equal to the aggregate
unpaid principal amount of such Bank=s Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type
be evidenced by a separate Note in an amount equal to
the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of
Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the
relevant type. Each reference in this Agreement to the
ANote" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank=s Note pursuant to
Section 3.01(b), the Agent shall forward such Note to
such Bank. Each Bank shall record the date, amount and
type of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with
respect thereto, and may, if such Bank so elects in
connection with any transfer or enforcement of its
Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing
information with respect to each such Loan then
outstanding; provided that the failure of any Bank to
make any such recordation or endorsement, or any error
in the making thereof, shall not affect the obligations
of the Borrower hereunder or under the Notes. Each
Bank is hereby irrevocably authorized by the Borrower
so to endorse its Note and to attach to and make a part
of its Note a continuation of any such schedule as and
when required.
Section 2.6. Maturity of Loans. (a) Each
Committed Loan shall mature, and the principal amount
thereof shall be due and payable, on the Termination
Date.
(b) Each Money Market Loan included in any Money
Market Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
Section 2.7. Interest Rates. (a) Each Base Rate
Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to
the Base Rate for such day. Such interest shall be
payable quarterly in arrears on each Quarterly Date
and, with respect to the principal amount of any Base
Rate Loan converted to a CD Loan or a Euro-Dollar Loan,
on the date such amount is so converted. Any overdue
principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus
the Base Rate for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day
during each Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for
such day plus the Adjusted CD Rate applicable to such
Interest Period; provided that if any CD Loan or any
portion thereof shall, as a result of clause (b)(ii) of
the definition of Interest Period, have an Interest
Period of less than 30 days, such portion shall bear
interest for each day during such Interest Period at
the Base Rate for such day. Such interest shall be
payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 90
days, 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear
interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 2% plus the Base
Rate for such day.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to
the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent
to be the average (rounded upward, if necessary, to the
next higher 1/100 of 1%) of the prevailing rates per
annum bid at 10:00 A.M. (New York City time) (or as
soon thereafter as practicable) on the first day of
such Interest Period by two or more New York
certificate of deposit dealers of recognized standing
for the purchase at face value from each CD Reference
Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of
such CD Reference Bank to which such Interest Period
applies and having a maturity comparable to such
Interest Period.
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank
of the Federal Reserve System in New York City with
deposits exceeding five billion dollars in respect of
new non-personal time deposits in dollars in New York
City having a maturity comparable to the related
Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on
and as of the effective date of any change in the
Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable
by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup
AA" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R.
' 327.4(a) (or any successor provision) to the Federal
Deposit Insurance Corporation (or any successor) for
such Corporation=s (or such successor=s) insuring time
deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any
change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during each Interest Period applicable thereto, at a
rate per annum equal to the sum of the Euro-Dollar
Margin for such day plus the Adjusted London Interbank
Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is
longer than three months, three months after the first
day thereof.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per
annum equal to the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by
dividing (i) the applicable London Interbank Offered
Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward,
if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars
are offered to each of the Euro-Dollar Reference Banks
in the London interbank market at approximately 11:00
A.M. (London time) two Euro-Dollar Business Days before
the first day of such Interest Period in an amount
approximately equal to the principal amount of the
Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period
of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to
which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or
other assets which includes loans by a non-United
States office of any Bank to United States residents).
The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date
of any change in the Euro-Dollar Reserve Percentage.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on
demand, for each day from and including the date
payment thereof was due to but excluding the date of
actual payment, at a rate per annum equal to the sum of
2% plus the higher of (i) the sum of the Euro-Dollar
Margin for such day plus the Adjusted London Interbank
Offered Rate applicable to such Loan on the day before
such payment was due and (ii) the Euro-Dollar Margin
for such day plus the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%)
by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if
such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period
of time not longer than three months as the Agent may
select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank
market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in
clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 2% plus the Base
Rate for such day).
(e) Subject to Section 8.01(a), each Money Market
LIBOR Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the
sum of the London Interbank Offered Rate for such
Interest Period (determined in accordance with Section
2.07(c) as if the related Money Market LIBOR Borrowing
were a Committed Euro-Dollar Borrowing) plus (or minus)
the Money Market Margin quoted by the Bank making such
Loan in accordance with Section 2.03. Each Money
Market Absolute Rate Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to
the Money Market Absolute Rate quoted by the Bank
making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months
after the first day thereof. Any overdue principal of
or interest on any Money Market Loan shall bear
interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 2% plus the Base
Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall
give prompt notice to the Borrower and the
participating Banks of each rate of interest so
determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as
contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of
the quotation or quotations furnished by the remaining
Reference Bank or Banks or, if none of such quotations
is available on a timely basis, the provisions of
Section 8.01 shall apply.
Section 2.8. Facility Fee. The Borrower shall
pay to the Agent, for the account of the Banks ratably
in accordance with their respective Percentages, a
facility fee for each day at the Facility Fee Rate for
such day (determined in accordance with the Pricing
Schedule). Such facility fee shall accrue for each day
(i) from and including the Effective Date to but
excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on
the aggregate amount of the Commitments (whether used
or unused) on such day and (ii) if any Committed Loans
or LC Liabilities remain outstanding after the
Commitments terminate in their entirety, then for each
day from and including the date on which the
Commitments terminate in their entirety to but
excluding the first day thereafter on which no
Committed Loans or LC Liabilities remain outstanding,
on the aggregate outstanding amount of the Committed
Loans and the LC Liabilities on such day. Fees accrued
under this Section shall be payable quarterly on each
Quarterly Date and on the date on which the Commitments
terminate in their entirety (and, if later, the first
day thereafter on which no Committed Loans or LC
Liabilities remain outstanding).
Section 2.9. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least three
Domestic Business Days= notice to the Agent, (i)
terminate the Commitments at any time, if no Loans or
LC Liabilities are outstanding at such time, or (ii)
ratably reduce from time to time by an aggregate amount
of $5,000,000 or any larger integral multiple of
$1,000,000, the aggregate amount of the Commitments in
excess of the Aggregate Usage.
Section 2.10. Method of Electing Interest Rates.
(a) The Loans included in each Committed Borrowing
shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of
Committed Borrowing. Thereafter, the Borrower may from
time to time elect to change or continue the type of
interest rate borne by each Group of Loans (subject in
each case to the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the
Borrower may elect to convert such Loans to CD
Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are CD Loans, the Borrower
may elect to convert such Loans to Base Rate Loans
or Euro-Dollar Loans or elect to continue such
Loans as CD Loans for an additional Interest
Period, in each case effective on the last day of
the then current Interest Period applicable to
such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the
Borrower may elect to convert such Loans to Base
Rate Loans or CD Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional
Interest Period, in each case effective on the
last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice
(a "Notice of Interest Rate Election") to the Agent at
least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is
to be effective (unless the relevant Loans are to be
converted from Domestic Loans of one type to Domestic
Loans of the other type or continued as Domestic Loans
of the same type for an additional Interest Period, in
which case such notice shall be delivered to the Agent
at least three Domestic Business Days before such
conversion or continuation is to be effective). A
Notice of Interest Rate Election may, if it so
specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the
portion to which such Notice applies, and the remaining
portion to which it does not apply, are each
$10,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Group of Loans (or portion thereof) to
which such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be
effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to
be converted, the new type of Loans and, if such
new Loans are Fixed Rate Loans, the duration of
the initial Interest Period applicable thereto;
and
(iv) if such Loans are to be continued as CD
Loans or Euro-Dollar Loans for an additional
Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest
Rate Election shall comply with the provisions of the
definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate
Election from the Borrower pursuant to subsection (a)
above, the Agent shall promptly notify each Bank of the
contents thereof and such notice shall not thereafter
be revocable by the Borrower. If the Borrower fails to
deliver a timely Notice of Interest Rate Election to
the Agent for any Group of Fixed Rate Loans, such Loans
shall be converted to Base Rate Loans on the last day
of the then current Interest Period applicable thereto.
Section 2.11. Mandatory Termination of
Commitments. Unless previously terminated, the
Commitments shall terminate on the Termination Date,
and any Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such
date.
Section 2.12. Optional Prepayments. (a) The
Borrower may (i) upon at least one Domestic Business
Day=s notice to the Agent, prepay any Base Rate Loans
(or any Money Market Borrowing bearing interest at the
Base Rate pursuant to Section 8.01(a)), (ii) upon at
least three Domestic Business Days= notice to the
Agent, prepay any Group of CD Loans or (iii) upon at
least three Euro-Dollar Business Days= notice to the
Agent, prepay any Group of Euro-Dollar Loans, in each
case in whole at any time, or from time to time in part
in amounts aggregating $5,000,000 or any larger
integral multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably
the Loans of the several Banks included in such Group
or Borrowing. In connection with any such prepayment
of any Fixed Rate Loan, the Borrower shall comply with
the provisions of Section 2.14.
(b) Except as provided in subsection (a)
above, the Borrower may not prepay all or any portion
of the principal amount of any Money Market Loan prior
to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant
to this Section, the Agent shall promptly notify each
Bank of the contents thereof and of such Bank=s ratable
share (if any) of such prepayment and such notice shall
not thereafter be revocable by the Borrower.
Section 2.13. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal
of, and interest on, the Loans and of fees hereunder,
not later than 1:00 P.M. (New York City time) on the
date when due, in Federal or other funds immediately
available in New York City, to the Agent at its address
referred to in Section 9.01. The Agent will promptly
distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the
Banks. Whenever any payment of principal of, or
interest on, the Domestic Loans or of fees shall be due
on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case the date for
payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day. If the date for
any payment of principal is extended in accordance with
this Section 2.13, by operation of law or otherwise,
interest thereon shall be payable for such extended
time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any
payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full
to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed
to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such
amount distributed to such Bank together with interest
thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank
repays such amount to the Agent, at the Federal Funds
Rate.
Section 2.14. Funding Losses. If the Borrower
makes any payment of principal with respect to any
Fixed Rate Loan or any Fixed Rate Loan is converted to
another type of Loan (whether such payment or
conversion is pursuant to Article 2, 6 or 8 or
otherwise) on any day other than the last day of an
Interest Period applicable thereto, or the last day of
an applicable period fixed pursuant to Section 2.07(d),
or if the Borrower fails to borrow, prepay, convert or
continue any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.04(a) or
2.10(a), the Borrower shall pay to each Bank within 15
days after demand an amount calculated as provided in
Exhibit I hereto to compensate such Bank for any loss
incurred by it (or by an existing or scheduled
Participant in the related Loan) in obtaining,
liquidating or employing deposits from third parties,
provided that such Bank shall have delivered to the
Borrower a certificate setting forth such amount and
the calculation thereof in reasonable detail.
Section 2.15. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be
computed on the basis of a year of 365 days (or 366
days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the
last day). All other interest and all letter of credit
fees and facility fees shall be computed on the basis
of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the
last day).
Section 2.16. Letters of Credit. (a) On the
Effective Date, each LC Issuing Bank that has issued an
Existing Letter of Credit on or before the Effective
Date shall be deemed, without further action by any
party hereto, to have sold to each Bank, and each Bank
shall be deemed, without further action by any party
hereto, to have purchased from such LC Issuing Bank, a
participation in such Existing Letter of Credit and the
related LC Liabilities in proportion to its Percentage.
Concurrently with such sale, the participations in the
Existing Letters of Credit sold to the Existing Banks
under the Existing Agreement shall be automatically
cancelled without further action by any of the parties
thereto.
(b) Subject to the terms and conditions set forth
in this Agreement (including without limitation the
condition set forth in Section 3.03(b)),
(i) ABN-AMRO Bank, N.V., as LC Issuing Bank,
agrees to issue Letters of Credit hereunder from
time to time after the Effective Date and before
the Termination Date upon the request of the
Borrower, provided that immediately after each
such Letter of Credit is issued, the aggregate
outstanding amount of LC Liabilities in respect of
all Letters of Credit issued by ABN-AMRO Bank,
N.V., as LC Issuing Bank, shall not exceed
$100,000,000;
(ii) Bank of America National Trust and Savings
Association, as LC Issuing Bank, agrees to issue
Letters of Credit hereunder from time to time
after the Effective Date and before the
Termination Date upon the request of the Borrower,
provided that, immediately after each such Letter
of Credit is issued, the aggregate outstanding
amount of LC Liabilities in respect of all Letters
of Credit issued by Bank of America National Trust
and Savings Association, as LC Issuing Bank, shall
not exceed $100,000,000;
(iii) The First National Bank of Chicago, as LC
Issuing Bank, agrees to issue Letters of Credit
hereunder from time to time after the Effective
Date and before the Termination Date upon the
request of the Borrower, provided that (x)
immediately after each such Letter of Credit is
issued, the aggregate outstanding amount of LC
Liabilities in respect of all Letters of Credit
issued by The First National Bank of Chicago, as
LC Issuing Bank, shall not exceed $100,000,000 and
(y) The First National Bank of Chicago, as LC
Issuing Bank, shall not issue any Letter of Credit
in respect of any obligation under the Borrower=s
public debt or the TASP Notes; and
(iv) Xxxxxx Guaranty Trust Company of New York,
as LC Issuing Bank, agrees to issue Letters of
Credit hereunder from time to time after the
Effective Date and before the Termination Date
upon the request of the Borrower, provided that
immediately after each such Letter of Credit is
issued, the aggregate outstanding amount of LC
Liabilities in respect of all Letters of Credit
issued by Xxxxxx Guaranty Trust Company of New
York, as LC Issuing Bank, shall not exceed
$125,000,000.
Upon the issuance by an LC Issuing Bank of a Letter of
Credit in accordance with this subsection (b), such LC
Issuing Bank shall be deemed, without further action by
any party hereto, to have sold to each Bank, and each
Bank shall be deemed, without further action by any
party hereto, to have purchased from such LC Issuing
Bank, a participation in such Letter of Credit and the
related LC Liabilities in proportion to its Percentage.
(c) No Letter of Credit issued on or after the
Effective Date shall have an original expiry date later
than one year after the issuance thereof. No Letter of
Credit shall be extended on or after the Effective Date
unless (i) such extension is for a period not exceeding
one year and (ii) the LC Issuing Bank agrees to so
extend such Letter of Credit (or, in the case of an
"evergreen" Letter of Credit, its ability to give a
notice to prevent such extension expires) no earlier
than three months before the then existing expiry date.
No Letter of Credit shall have an original or extended
expiry date later than the fifth Domestic Business Day
prior to the Termination Date.
(d) The Borrower shall give the relevant LC Issuing
Bank at least three Domestic Business Days= prior
notice of (x) the issuance of each Letter of Credit to
be issued by it after the Effective Date and (y) each
extension of a Letter of Credit issued by it,
specifying in each case (i) the date of such issuance
or extension, (ii) the expiry date or extended expiry
date of such Letter of Credit (which shall comply with
subsection (c) above), (iii) the proposed terms of such
Letter of Credit and (iv) the nature of the
transactions proposed to be supported thereby. The
issuance of any Letter of Credit after the Effective
Date shall be subject to the conditions precedent set
forth in Article 3 (the LC Issuing Bank having no duty
to ascertain whether such conditions precedent are
satisfied, other than to confirm with the Agent on the
date of issuance that such issuance will not cause the
Aggregate Usage to exceed the aggregate amount of the
Commitments) and subject to the additional conditions
precedent that such Letter of Credit shall be
satisfactory to such LC Issuing Bank and that the
Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of
Credit as such LC Issuing Bank shall have reasonably
requested. The extension of any Letter of Credit shall
be subject to the conditions precedent set forth in
Article 3 (the LC Issuing Bank having no duty to
ascertain whether such conditions precedent are
satisfied). Upon issuing or extending any Letter of
Credit, the LC Issuing Bank shall promptly notify the
Agent of such issuance or extension, and the Agent
shall promptly notify each Bank thereof and of the
amount of such Bank=s participation in such Letter of
Credit.
(e) The Borrower shall pay to the Agent, for the
account of the Banks ratably in accordance with their
respective Percentages, a letter of credit fee at (i)
the LC Fee Rate on the aggregate amount available for
drawings under each Letter of Credit (other than
Workers= Compensation Letters of Credit) outstanding
from time to time and (ii) the LC Fee Rate minus 0.05%
per annum on the aggregate amount available for
drawings under each Workers= Compensation Letter of
Credit outstanding from time to time. Each such fee
shall be payable in arrears on the last day of each
fiscal quarter of the Borrower for so long as such
Letter of Credit is outstanding and on the expiry date
thereof. The Borrower shall pay to each LC Issuing
Bank additional fronting fees and expenses in the
amounts and at the times agreed between the Borrower
and such LC Issuing Bank. The LC Issuing Banks shall
furnish to the Agent upon request such information as
the Agent shall require in order to calculate the
amount of any fee payable under this subsection (e).
"LC Fee Rate" means, for any day, a rate per annum
equal to the Euro-Dollar Margin for such day.
(f) Upon receipt from the beneficiary of any Letter
of Credit of any demand for payment under such Letter
of Credit, the relevant LC Issuing Bank shall notify
the Agent and the Agent shall promptly notify the
Borrower and each other Bank as to the amount to be
paid by the Issuing Bank as a result of such demand and
the proposed payment date (the "LC Payment Date"). The
responsibility of such LC Issuing Bank to the Borrower
and each Bank shall be only to determine that the
documents (including each demand for payment) delivered
under each Letter of Credit issued by it in connection
with such presentment shall be in conformity in all
material respects with such Letter of Credit. Each LC
Issuing Bank shall endeavor to exercise the same care
in the issuance and administration of the Letters of
Credit issued by it as it does with respect to letters
of credit in which no participations are granted, it
being understood that in the absence of any gross
negligence or willful misconduct by such LC Issuing
Bank, each Bank shall be unconditionally and
irrevocably liable without regard to the occurrence of
any Event of Default or any condition precedent
whatsoever, to reimburse such LC Issuing Bank on demand
for (i) such Bank=s Percentage of the amount of each
payment made by such LC Issuing Bank under each Letter
of Credit issued by it to the extent such amount is not
reimbursed by the Borrower pursuant to subsection (g)
below plus (ii) interest on the foregoing amount to be
reimbursed by such Bank, for each day from the date of
such LC Issuing Bank=s demand for such reimbursement
(or, if such demand is made after 11:00 A.M. (New York
City time) on such date, from the next succeeding
Domestic Business Day) to the date on which such Bank
pays the amount to be reimbursed by it, at a rate of
interest per annum equal to the Federal Funds Rate for
such day.
(g) The Borrower shall be irrevocably and
unconditionally obligated to reimburse each LC Issuing
Bank on or by the applicable LC Reimbursement Date for
any amounts paid by such LC Issuing Bank upon any
drawing under any Letter of Credit issued by it,
without presentment, demand, protest or other
formalities of any kind; provided that neither the
Borrower nor any Bank shall hereby be precluded from
asserting any claim for direct (but not consequential)
damages suffered by the Borrower or such Bank to the
extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such LC
Issuing Bank in determining whether a request presented
under any Letter of Credit issued by it complied with
the terms of such Letter of Credit or (ii) such LC
Issuing Bank=s failure to pay under any Letter of
Credit issued by it after the presentation to it of a
request strictly complying with the terms and
conditions of such Letter of Credit. All such amounts
paid by such LC Issuing Bank and remaining unpaid by
the Borrower shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to
(x) the Base Rate for such day if such day falls on or
before the applicable LC Reimbursement Date and (y) the
sum of 2% plus the Base Rate for such day if such day
falls after such LC Reimbursement Date. Each LC
Issuing Bank will pay to each Bank ratably in
accordance with its Percentage all amounts received
from the Borrower for application in payment, in whole
or in part, of the Reimbursement Obligations in respect
of any Letter of Credit issued by such LC Issuing Bank,
but only to the extent such Bank has made payment to
such LC Issuing Bank in respect of such Letter of
Credit pursuant to subsection (f).
(h) If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change
in the interpretation or administration thereof by any
governmental authority, central bank or comparable
agency charged with the interpretation or
administration thereof, or compliance by any Bank or LC
Issuing Bank with any request or directive (whether or
not having the force of law) of any such authority,
central bank or comparable agency shall impose, modify
or deem applicable any tax, reserve, special deposit or
similar requirement against or with respect to or
measured by reference to Letters of Credit issued or to
be issued hereunder or participations therein, and the
result shall be to increase the cost to any Bank or LC
Issuing Bank of issuing or maintaining any Letter of
Credit or any participation therein, or reduce any
amount receivable by any Bank or LC Issuing Bank
hereunder in respect of any Letter of Credit (which
increase in cost, or reduction in amount receivable,
shall be the result of such Bank=s or LC Issuing Bank=s
reasonable allocation of the aggregate of such
increases or reductions resulting from such event),
then, upon demand by such Bank or LC Issuing Bank, the
Borrower agrees to pay to such Bank or LC Issuing Bank,
from time to time as specified by such Bank or LC
Issuing Bank, such additional amounts as shall be
sufficient to compensate such Bank or LC Issuing Bank
for such increased costs or reductions in amount
incurred by such Bank or LC Issuing Bank. A
certificate of such Bank or LC Issuing Bank submitted
by such Bank or LC Issuing Bank to the Borrower shall
be conclusive as to the amount thereof in the absence
of manifest error.
(i) The Borrower=s obligations under this Section
2.16 shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower
may have or have had against any LC Issuing Bank, any
Bank or any beneficiary of a Letter of Credit. The
Borrower further agrees with the LC Issuing Banks and
the Banks that the LC Issuing Banks and the Banks shall
not be responsible for, and the Borrower=s
Reimbursement Obligations in respect of any Letter of
Credit shall not be affected by, among other things,
the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in
fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among
the Borrower, any of its Subsidiaries, the beneficiary
of any Letter of Credit or any financing institution or
other party to whom any Letter of Credit may be
transferred or any claims or defenses whatsoever of the
Borrower or any of its Subsidiaries against the
beneficiary of any Letter of Credit or any such
transferee. No LC Issuing Bank shall be liable for any
error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit
issued, extended or renewed by it. The Borrower agrees
that any action taken or omitted by an LC Issuing Bank
or any Bank under or in connection with each Letter of
Credit and the related drafts and documents, if done in
good faith and without gross negligence, shall be
binding upon the Borrower and shall not put such LC
Issuing Bank or any Bank under any liability to the
Borrower.
(j) To the extent not inconsistent with subsection
(i) above, each LC Issuing Bank shall be entitled to
rely, and shall be fully protected in relying upon, any
Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message,
statement, order or other document 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, independent
accountants and other experts selected by such LC
Issuing Bank. Each LC Issuing Bank shall be fully
justified in failing or refusing to take any action
under this Agreement unless it shall first have
received such advice or concurrence of the Required
Banks as it reasonably deems appropriate or it shall
first be indemnified to its reasonable 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. Notwithstanding
any other provision of this Section 2.16, each LC
Issuing Bank shall in all cases be fully protected in
acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required
Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon the Banks
and all future holders of participations in any Letters
of Credit.
(k) The Borrower hereby agrees to indemnify and
hold harmless each Bank, each LC Issuing Bank and the
Agent, and their respective directors, officers, agents
and employees from and against any and all claims and
damages, losses, liabilities, costs or expenses which
such Bank, such LC Issuing Bank or the Agent may incur
(or which may be claimed against such Bank, such LC
Issuing Bank or the Agent by any Person whatsoever) by
reason of or in connection with the execution and
delivery or transfer of or payment or failure to pay
under any Letter of Credit or any actual or proposed
use of any Letter of Credit, including, without
limitation, any claims, damages, losses, liabilities,
costs or expenses which an LC Issuing Bank may incur by
reason of or in connection with the failure of any
other Bank to fulfill or comply with its obligations to
such LC Issuing Bank hereunder (but nothing herein
contained shall affect any rights the Borrower may have
against any defaulting Bank); provided that the
Borrower shall not be required to indemnify any Bank,
any LC Issuing Bank or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of an LC Issuing
Bank in determining whether a request presented under
any Letter of Credit issued by it complied with the
terms of such Letter of Credit or (ii) an LC Issuing
Bank=s failure to pay under any Letter of Credit issued
by it after the presentation to it of a request
strictly complying with the terms and conditions of
such Letter of Credit; and provided further that the
foregoing indemnity shall not apply with respect to any
costs or expenses arising out of any claim by any
Person other than the beneficiary or account party
under the relevant Letter of Credit unless such costs
and expenses shall have been reasonably incurred.
Nothing in this subsection (k) is intended to limit the
obligations of the Borrower under any other provision
of this Agreement.
(l) Each Bank shall, ratably in accordance with its
Percentage, indemnify each LC Issuing Bank, its
affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by
the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim,
demand, action, loss or liability (except such as
result from such indemnitees= gross negligence or
willful misconduct or such LC Issuing Bank=s failure to
pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with
the terms and conditions of the Letter of Credit) that
such indemnitees may suffer or incur in connection with
this Section 2.16 or any action taken or omitted by
such indemnitees hereunder.
(m) In its capacity as a Bank, each LC Issuing Bank
shall have the same rights and obligations as any other
Bank. The obligations of the LC Issuing Banks under
the Financing Documents are several and not joint.
Section 2.17. Maximum Interest Rate. (a)
Nothing contained in this Agreement or the Notes shall
require the Borrower to pay interest for the account of
any Bank at a rate exceeding the maximum rate permitted
by applicable law.
(b) If the amount of interest payable for the
account of any Bank on any interest payment date in
respect of the immediately preceding interest
computation period, computed pursuant to Section 2.07,
would exceed the maximum amount permitted by applicable
law to be charged by such Bank, the amount of interest
payable for its account on such interest payment date
shall be automatically reduced to such maximum
permissible amount.
(c) If the amount of interest payable for the
account of any Bank in respect of any interest
computation period is reduced pursuant to subsection
(b) of this Section and the amount of interest payable
for its account in respect of any subsequent interest
computation period, computed pursuant to Section 2.07,
would be less than the maximum amount permitted by
applicable law to be charged by such Bank, then the
amount of interest payable for its account in respect
of such subsequent interest computation period shall be
automatically increased to such maximum permissible
amount; provided that at no time shall the aggregate
amount by which interest paid for the account of any
Bank has been increased pursuant to this subsection (c)
exceed the aggregate amount by which interest paid for
its account has theretofore been reduced pursuant to
subsection (b) of this Section.
ARTICLE 3
Conditions
Section 3.1. Conditions to Effectiveness. This
Agreement shall become effective on the date on which
all of the following conditions to effectiveness shall
be satisfied (but shall not become effective unless
such date is on or before January 2, 1997):
(a) the Agent shall have received counterparts
hereof signed by each of the parties hereto (or, in
the case of any party as to which an executed
counterpart shall not have been received, the Agent
shall have received in form satisfactory to it
facsimile or other written confirmation from such
party that it has executed a counterpart hereof);
(b) the Agent shall have received a duly
executed Note for the account of each Bank dated on
or before the Effective Date complying with the
provisions of Section 2.05;
(c) the Agent shall have received counterparts
of a Subsidiary Guaranty Agreement, substantially in
the form of Exhibit H hereto, duly executed by each
of the Obligors listed on the signature pages
thereof;
(d) the Borrower shall have paid in full (or
made arrangements satisfactory to the Agent for
paying in full) on the Effective Date all loans
outstanding under the Existing Agreement, all
interest and fees accrued under the Existing
Agreement to but excluding the Effective Date and
all other amounts (if any) then due and payable by
the Borrower thereunder;
(e) the Agent shall have received an opinion of
Eberhard X.X. Xxxxxxxxx, Esq., general counsel for
the Borrower, substantially in the form of Exhibit E
hereto and covering such additional matters relating
to the transactions contemplated hereby as the
Required Banks may reasonably request;
(f) the Agent shall have received an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Agent, substantially in the form of Exhibit F hereto
and covering such additional matters relating to the
transactions contemplated hereby as the Required
Banks may reasonably request;
(g) the Agent shall have received a certificate
of an officer of the Borrower stating that the
distribution of the capital stock of Consolidated
Freightways Corporation to the Borrower=s
shareholders pursuant to the Spin-Off has commenced;
(h) the Agent shall have received a copy of a
favorable private letter ruling from the Internal
Revenue Service to the effect that the Spin-Off will
be "tax free" to the Borrower; and
(i) the Agent shall have received all documents
the Agent may reasonably request relating to the
existence of the Obligors, the corporate authority
for and the validity of the Financing Documents and
any other matters relevant hereto, all in form and
substance satisfactory to the Agent.
The Agent shall promptly notify the Borrower, the Banks
and the LC Issuing Banks of the Effective Date, and
such notice shall be conclusive and binding on all
parties hereto.
Section 3.2. Consequence of Effectiveness. (a)
On the Effective Date, without further action by any of
the parties thereto, (i) the Existing Agreement will
be automatically amended and restated to read as this
Agreement reads, (ii) the rights and obligations of the
Terminating Banks under the Existing Agreement will
terminate, provided that their rights under Sections
2.13, 8.04, and 9.03(b) of the Existing Agreement will
survive, and (iii) the obligations of the Subsidiary
Guarantors under the existing Subsidiary Guaranty
Agreement dated as of January 10, 1995 will terminate.
(b) On and after the Effective Date, the rights and
obligations of the parties hereto shall be governed by
the provisions hereof, and the rights and obligations
of the parties hereto that are also parties to the
Existing Agreement with respect to the period prior to
the Effective Date shall continue to be governed by the
provisions thereof as in effect prior to the Effective
Date, except that all interest and fees accrued under
the Existing Agreement to but excluding the Effective
Date shall be paid on the Effective Date.
Section 3.3. Credit Extensions. The obligation
of any Bank to make a Loan on the occasion of any
Borrowing and the obligation of an LC Issuing Bank to
issue or extend a Letter of Credit on the occasion of a
request therefor by the Borrower (or to permit an
automatic extension of an "evergreen" Letter of Credit)
are each subject to the satisfaction of the following
conditions (in addition to those set forth in Section
2.16(d), if applicable):
(a) receipt (i) by the Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as
the case may be, in the case of a Borrowing or (ii)
by such LC Issuing Bank of a notice as required by
Section 2.16, in the case of a Letter of Credit;
(b) the fact that, after giving effect to such
Credit Extension, the Aggregate Usage will not
exceed the aggregate amount of the Commitments;
(c) the fact that, immediately before and after
such Credit Extension, no Default shall have
occurred and be continuing; and
(d) the fact that the representations and
warranties of the Borrower contained in this
Agreement shall be true on and as of the date of
such Credit Extension.
Each Credit Extension hereunder shall be deemed to be a
representation and warranty by the Borrower on the date
of such Credit Extension as to the facts specified in
clauses (b), (c) and (d) of this Section.
ARTICLE 4
Representations and Warranties
The Borrower represents and warrants that:
Section 4.1. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
Section 4.2. Corporate and Governmental
Authorization; No Contravention. The execution,
delivery and performance by each Obligor of the
Financing Documents to which it is a party are within
its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in
respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute
a default under, any provision of applicable law or
regulation or of the certificate of incorporation or
by-laws of such Obligor or of any agreement, judgment,
injunction, order, decree or other instrument binding
upon such Obligor or any Subsidiary or result in the
creation or imposition of any Lien on any asset of such
Obligor or any Subsidiary.
Section 4.3. Binding Effect. This Agreement
constitutes a valid and binding agreement of the
Borrower and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid
and binding obligations of the Borrower, in each case
enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws
affecting creditors= rights generally and general
principles of equity. The Subsidiary Guaranty
Agreement, when executed and delivered by each Obligor,
will constitute a valid and binding agreement of such
Obligor, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar
laws affecting creditors= rights generally and general
principles of equity.
Section 4.4. Financial Information. (a) The
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1995 and
the related statements of consolidated income,
consolidated cash flows and consolidated shareholders=
equity for the fiscal year then ended, reported on by
Xxxxxx Xxxxxxxx LLP and set forth in the Borrower=s
1995 Annual Report to Shareholders, a copy of which has
been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting
principles, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and
cash flows for such fiscal year.
(b) The unaudited condensed consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries
as of June 30, 1996 and the related unaudited condensed
statements of consolidated income and consolidated cash
flows for the six months then ended, set forth in the
Borrower=s quarterly report for the fiscal quarter
ended June 30, 1996 as filed with the Securities and
Exchange Commission on Form 10-Q, a copy of which has
been delivered to each of the Banks, fairly present, on
a basis consistent with the financial statements
referred to in subsection (a) of this Section, the
consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for
such six-month period (subject to normal year-end
adjustments).
(c) Excluding the effects of the Spin-Off, as such
effects were projected in the Borrower=s current report
on Form 8-K dated August 26, 1996, there has been no
material adverse change since June 30, 1996 in the
business, financial position, results of operations or
prospects of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
Section 4.5. Litigation. There is no action,
suit or proceeding pending against, or to the knowledge
of the Borrower threatened against or affecting, the
Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official
(i) in which there is a reasonable possibility that a
final judgment in excess of $30,000,000 will be entered
or filed against the Borrower or any of its
Subsidiaries, (ii) in which there is a reasonable
possibility of an adverse decision which could, in a
manner not involving the payment of damages, materially
adversely affect the business of the Borrower and its
Subsidiaries, considered as a whole, or (iii) which in
any manner draws into question the validity of any
Financing Document.
Section 4.6. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in
compliance in all respects with the presently
applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan, except to the extent
that noncompliance could not materially adversely
affect the business, consolidated financial position or
consolidated results of operations of the Borrower and
its Consolidated Subsidiaries. No member of the ERISA
Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code
in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made
any amendment to any Plan or Benefit Arrangement, which
has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred
any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007
of ERISA.
Section 4.7. Environmental Matters. In the
ordinary course of its business, the Borrower conducts
periodic reviews of the effect of Environmental Laws on
the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and
costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure
of properties presently or previously owned, any
capital or operating expenditures required to achieve
or maintain compliance with environmental protection
standards imposed by law or as a condition of any
license, permit or contract, any related constraints on
operating activities, including any periodic or
permanent shutdown of any facility or reduction in the
level of or change in the nature of operations
conducted thereat, any costs or liabilities in
connection with off-site disposal of wastes or
Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and
any related costs and expenses). On the basis of such
reviews, the Borrower has reasonably concluded that
such associated liabilities and costs, including the
costs of compliance with Environmental Laws, are
unlikely (after taking into account the Borrower=s
reserves for such liabilities and costs) to have a
material adverse effect on the business, financial
condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered
as a whole.
Section 4.8. Taxes. United States Federal income
tax returns of the Borrower and its Subsidiaries have
been examined and closed through the fiscal year ended
December 31, 1983. The Borrower and its Subsidiaries
have filed all United States Federal income tax returns
and all other material tax returns which are required
to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment
received by the Borrower or any Subsidiary. The
charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the
Borrower, adequate.
Section 4.9. Subsidiaries. Each of the
Borrower=s corporate Subsidiaries is a corporation duly
incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation,
and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted. Each Subsidiary Guarantor is a Wholly-Owned
Subsidiary of the Borrower.
Section 4.10. Not an Investment Company. The
Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended.
Section 4.11. Full Disclosure. All information
heretofore furnished by the Borrower to the Agent or
any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is,
and all such information hereafter furnished by the
Borrower to the Agent or any Bank will be, true and
accurate in all material respects on the date as of
which such information is stated or certified. The
Borrower has disclosed to the Banks in writing any and
all facts which materially and adversely affect or may
affect (to the extent the Borrower can now reasonably
foresee) the business, operations or financial
condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of the
Borrower to perform its obligations under this
Agreement.
Section 4.12. Spin-Off. The Spin-Off will be
"tax free" to the Borrower as described in the ruling
referred to in Section 3.01(h).
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Bank has
any Commitment or any Outstanding LC Exposure hereunder
or any amount payable under any Note remains unpaid:
Section 5.1. Information. The Borrower will
deliver to each of the Banks:
(a) as soon as available and in any event
within 120 days after the end of each fiscal year of
the Borrower, the audited consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related
audited statements of consolidated income,
consolidated cash flows and consolidated
shareholders= equity for such fiscal year, setting
forth in each case in comparative form the figures
for the previous fiscal year, all reported on in a
manner acceptable to the Securities and Exchange
Commission by Xxxxxx Xxxxxxxx LLP or other
independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event
within 45 days after the end of each of the first
three quarters of each fiscal year of the Borrower,
the condensed consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the
end of such quarter, the related condensed statement
of income for such quarter and the related condensed
statements of income and consolidated cash flows for
the portion of the Borrower=s fiscal year ended at
the end of such quarter, setting forth in the case
of such statements of consolidated income and
consolidated cash flows in comparative form the
figures for the corresponding periods of the
Borrower=s previous fiscal year, all certified
(subject to normal year-end adjustments) as to
fairness of presentation and consistency by the
chief financial officer or the chief accounting
officer of the Borrower;
(c) simultaneously with the delivery of each
set of financial statements referred to in clauses
(a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of
the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the
Borrower was in compliance with the requirements of
Sections 5.07, 5.08, 5.09 and 5.12 on the date of
such financial statements and (ii) stating whether
any Default exists on the date of such certificate
and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each
set of financial statements referred to in clause
(a) above, a statement of the firm of independent
public accountants which reported on such statements
(i) whether anything has come to their attention to
cause them to believe that any Default existed on
the date of such statements and (ii) confirming the
calculations set forth in the officer=s certificate
delivered simultaneously therewith pursuant to
clause (c) above;
(e) within five Domestic Business Days after
any officer of the Borrower obtains knowledge of any
Default, if such Default is then continuing, a
certificate of the chief financial officer or the
chief accounting officer of the Borrower setting
forth the details thereof and the action which the
Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of
all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits
thereto and any registration statements on Form S-8
or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K (or their equivalents) which the Borrower
shall have filed with the Securities and Exchange
Commission;
(h) if and when any member of the ERISA Group
(i) gives or is required to give notice to the PBGC
of any "reportable event" (as defined in Section
4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required
to give notice of any such reportable event, a copy
of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is
insolvent or has been terminated, which could, when
aggregated with any liability incurred after June
30, 1996 by any member of the ERISA Group as a
result of any other such withdrawal liability,
reorganization, insolvency or termination, give rise
to aggregate liabilities of the ERISA Group in
excess of $5,000,000, a copy of such notice; (iii)
receives notice from the PBGC under Title IV of
ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a
copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA,
which could, when aggregated with any liability
incurred after June 30, 1996 by any member of the
ERISA Group as a result of any other such
withdrawal, give rise to aggregate liabilities of
the ERISA Group in excess of $5,000,000, a copy of
such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which
has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the
chief accounting officer of the Borrower setting
forth details as to such occurrence and action, if
any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take; and
(i) from time to time such additional
information regarding the financial position or
business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably
request.
Section 5.2. Payment of Obligations. The
Borrower will pay and discharge, and will cause each
Subsidiary to pay and discharge, at or before maturity,
all their respective material obligations and
liabilities, including, without limitation, tax
liabilities, except where the same are contested in
good faith by appropriate proceedings, and will
maintain, and will cause each Subsidiary to maintain,
in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any
of the same.
Section 5.3. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each
Subsidiary to keep, all property useful and necessary
in its business in good working order and condition,
ordinary wear and tear excepted.
(b) The Borrower will maintain, and will cause each
Subsidiary to maintain, with financially sound and
reputable insurers, insurance against liabilities to
third parties, casualties affecting property used in
its business and other risks of the kinds customarily
insured against by corporations of established
reputation engaged in the same or similar business and
similarly situated, of such types and in such amounts
as are customarily carried under similar circumstances
by such other corporations; provided that, in lieu of
any such insurance, the Borrower or any Subsidiary may
maintain a system or systems of self-insurance and
reinsurance which will accord with sound practices of
similarly situated corporations maintaining such
systems and with respect to which the Borrower or such
Subsidiary will maintain adequate insurance reserves,
all in accordance with generally accepted accounting
principles and in accordance with sound insurance
principles or practice.
Section 5.4. Conduct of Business and Maintenance
of Existence. The Borrower will continue, and will
cause each Subsidiary to continue, to engage in
business of the same general type as now conducted by
the Borrower and its Subsidiaries, and will preserve,
renew and keep in full force and effect, and will cause
each Subsidiary to preserve, renew and keep in full
force and effect their respective corporate existence
and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.04
shall prohibit (i) any merger or consolidation
permitted by Section 5.10 or (ii) the termination of
the corporate existence of any Subsidiary (other than a
Subsidiary Guarantor) if the Borrower in good faith
determines that such termination is in the best
interest of the Borrower and is not materially
disadvantageous to the Banks.
Section 5.5. Compliance with Laws. The Borrower
will comply, and will cause each Subsidiary to comply,
in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of
governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules
and regulations thereunder), except where (i) the
necessity of compliance therewith is contested in good
faith by appropriate proceedings or (ii) failures to
comply therewith could not, in the aggregate, have a
material adverse effect on the business, consolidated
financial position or consolidated results of
operations of the Borrower and its Consolidated
Subsidiaries.
Section 5.6. Inspection of Property, Books and
Records. The Borrower will keep, and will cause each
Subsidiary to keep, proper books of record and account
in which full, true and correct entries shall be made
of all dealings and transactions in relation to its
business and activities. The Borrower will permit, and
will cause its Subsidiaries (except Insignificant
Subsidiaries) to permit, representatives of any Bank,
at such Bank=s expense, to visit and inspect any of
their respective properties, to examine and make
abstracts from any of their respective books and
records and to discuss their respective affairs,
finances and accounts with their respective officers,
employees and independent accountants, in each case to
the extent reasonably requested by such Bank to enable
it to evaluate the credit of the Borrower and the
Subsidiary Guarantors, confirm the Borrower=s
compliance with the provisions of the Financing
Documents, exercise and enforce such Bank=s rights
under the Financing Documents or otherwise make
decisions relating thereto, but subject to any
limitations imposed by law or by confidentiality
agreements binding on the Borrower or the relevant
Subsidiary. Such visits, inspections, examinations and
discussions shall be conducted at such reasonable times
and as often as the relevant Bank or Banks may
reasonably request.
Section 5.7. Debt. (a) The ratio of
Consolidated Debt to Consolidated Net Worth shall not
at any time exceed 1.65 to 1.
(b) Total Debt of all Subsidiaries will at no time
exceed $50,000,000; provided that, for purposes of this
subsection (b), such total Debt shall not include:
(i) Debt of a Subsidiary owing to the Borrower;
(ii) Debt of a Subsidiary owing to another
Subsidiary (except, in the case of Debt held by a
Subsidiary that is not wholly owned, directly or
indirectly, by the Borrower, the portion of such
Debt allocable, on a pro rata basis, to the minority
interest);
(iii) Guarantees by a Subsidiary of Debt of the
Borrower or Debt of another Subsidiary;
(iv) Debt of a Subsidiary outstanding on June
30, 1996 or any refinancing of such Debt, provided
that the principal amount of refinancing Debt
excluded from total Debt pursuant to this clause
(iv) shall not exceed the principal amount of the
Debt refinanced thereby;
(v) Debt of a Subsidiary secured by a purchase
money Lien permitted by Section 5.09(c); provided
that the aggregate outstanding principal amount of
all Debt excluded from total Debt pursuant to this
clause (v) shall not at any time exceed
$150,000,000;
(vi) for a period of 90 days after the
Effective Date (but not thereafter), Debt
outstanding under the Xxxxx Receivables Facility not
exceeding $35,000,000 in aggregate outstanding
principal amount; and
(vii) Guarantees by a Subsidiary of Debt of an
ESOP Trust.
As used herein, the term "ESOP Trust" means a trust
created under an employee stock ownership plan as
defined in Section 407(d)(6) of ERISA which purchases
capital stock of the relevant Subsidiary for the
benefit of employees of such Subsidiary and its
subsidiaries.
Section 5.8. Minimum Consolidated Net Worth.
Consolidated Net Worth shall not at any time be less
than $350,000,000; provided that such amount shall be
increased (i) as of December 31, 1996 by an amount
equal to 50% of the consolidated net income of the
Borrower and its Consolidated Subsidiaries for the six
months then ended, if such consolidated net income is
positive, and (ii) as of the last day of each fiscal
year thereafter by an amount equal to 50% of the
consolidated net income of the Borrower and its
Consolidated Subsidiaries for such fiscal year, if such
consolidated net income is positive.
Section 5.9. Negative Pledge. Neither the
Borrower nor any Subsidiary will create, assume or
suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this
Agreement securing Debt outstanding on the date of
this Agreement in an aggregate principal amount not
exceeding $115,000,000;
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Subsidiary and not created in contemplation of such
event at the request of the Borrower or any of its
Subsidiaries or for the benefit of any of their
respective creditors;
(c) any purchase money Lien on any property
constituting a fixed asset or a surface or air
transportation vehicle used in the freight business
hereafter acquired by the Borrower or any Subsidiary
or hereafter constructed or improved by the Borrower
or any Subsidiary, to secure or provide for the
payment of all or a part of the purchase price
thereof, or any Debt incurred to finance the
purchase thereof or cost of construction or cost of
improvement of such property and for which a bona
fide firm commitment in writing was executed prior
to, contemporaneously with or within 180 days after
acquisition of such property, or the completion of
construction or improvement thereof, as the case may
be, provided that no such Lien shall extend to any
other property of the Borrower or any Subsidiary;
(d) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such
event at the request of the Borrower or any of its
Subsidiaries or for the benefit of any of their
respective creditors;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Subsidiary
and not created in contemplation of such acquisition
at the request of the Borrower or any of its
Subsidiaries or for the benefit of any of their
respective creditors;
(f) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured
by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is
not increased and is not secured by any additional
assets;
(g) any Lien on (i) the common stock of any
Subsidiary Guarantor, but only if after giving
effect to such Lien, the Borrower would own,
directly or indirectly, at least 80% of the common
stock of such Subsidiary Guarantor free and clear of
Liens or (ii) the common stock of any other
Subsidiary;
(h) Liens arising in the ordinary course of its
business which (i) do not secure Debt, (ii) do not
secure any obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or
materially impair the use thereof in the operation
of its business;
(i) Liens securing the Xxxxx Receivables
Facility;
(j) any Lien (other than Liens securing the
Xxxxx Receivables Facility) on accounts receivable
if, immediately after such Lien arises, the
aggregate uncollected balance of all accounts
receivable sold or subjected to Liens (other than
Liens securing the Xxxxx Receivables Facility) by
the Borrower and its Subsidiaries (excluding
accounts receivable charged off in accordance with
the charge-off policies applicable to the unsold
accounts receivable of the Borrower and its
Subsidiaries) would not exceed 10% of the
consolidated accounts receivable of the Borrower and
its Subsidiaries as of the end of its then most
recently ended fiscal quarter; and
(k) Liens not otherwise permitted by the
foregoing clauses of this Section securing Debt or
other obligations in an aggregate principal amount
at any time outstanding not to exceed the sum of
$15,000,000 plus 10% of Consolidated Net Worth as of
the end of the immediately preceding fiscal quarter
of the Borrower.
Section 5.10. Consolidations, Mergers and Sales
of Assets. The Borrower will not, and will not permit
any Subsidiary to, consolidate or merge with, or sell,
lease or otherwise transfer any of its assets to, any
Person, except that nothing in this Section 5.10 shall
prohibit:
(a) the merger of a Subsidiary into the
Borrower,
(b) the merger or consolidation of a Subsidiary
with or into another Person if the corporation
surviving such consolidation or merger is a
Subsidiary,
(c) the sale, lease or other transfer of any
aircraft either (i) in the ordinary course of
business or (ii) for fair value if after giving
effect thereto, the aggregate consideration received
for all aircraft sold, leased or otherwise
transferred under this clause (ii) during any fiscal
year of the Borrower does not exceed $150,000,000;
(d) any sale, lease or other transfer of any
asset (including aircraft not permitted to be sold,
leased or otherwise transferred pursuant to clause
(c) above) either (i) in the ordinary course of
business or (ii) for fair value if after giving
effect thereto, the aggregate consideration received
for all of their assets sold, leased or otherwise
transferred under this clause (ii) during any fiscal
year of the Borrower does not exceed $100,000,000;
or
(e) the Spin-Off;
provided that, in the case of (x) any such merger or
consolidation or (y) any such sale, lease or other
transfer of any asset not in the ordinary course of
business, no Default shall have occurred and be
continuing after giving effect thereto.
Section 5.11. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower for general corporate purposes. None of such
proceeds will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the
meaning of Regulation U.
Section 5.12. Fixed Charge Coverage. The ratio
of Consolidated EBITDAR to Consolidated Fixed Charges
will not, for any period of four consecutive fiscal
quarters, be less than 1.875 to 1.
Section 5.13. Transactions with Third Party
Affiliates. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, pay
any funds to or for the account of, make any investment
(whether by acquisition of stock or indebtedness, by
loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise) in, lease, sell,
transfer or otherwise dispose of any assets, tangible
or intangible, to, or participate in, or effect any
transaction in connection with any joint enterprise or
other joint arrangement with, any Third Party
Affiliate; provided that nothing in this Section 5.13
shall prohibit:
(a) the Borrower from declaring or paying any
lawful dividend so long as, after giving effect
thereto, no Default shall have occurred and be
continuing;
(b) the Borrower or any Subsidiary from making
sales to or purchases from any Third Party Affiliate
and, in connection therewith, extending credit or
making payments, or from making payments for
services rendered by any Third Party Affiliate, if
such sales or purchases are made or such services
are rendered in the ordinary course of business and
on an arm=s-length basis;
(c) the Borrower or any Subsidiary from making
payments of principal, interest and premium on any
Debt of the Borrower or such Subsidiary held by a
Third Party Affiliate if the terms of such Debt are
established on an arm=s-length basis; or
(d) the Borrower or any Subsidiary from
participating in, or effecting any transaction in
connection with, any joint enterprise or other joint
arrangement with any Third Party Affiliate if the
Borrower or such Subsidiary participates in the
ordinary course of its business and on a basis no
less advantageous than the basis on which such Third
Party Affiliate participates.
ARTICLE 6
Defaults
Section 6.1. Events of Default. If one or more
of the following events ("Events of Default") shall
have occurred and be continuing:
(a) the Borrower shall fail to pay any
principal of any Loan or Reimbursement Obligation
when due, or shall fail to pay within three Domestic
Business Days of the due date thereof any interest,
fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or
perform any covenant contained in Sections 5.07 to
5.12, inclusive, or in Section 3.01 of the
Subsidiary Guaranty Agreement;
(c) the Borrower shall fail to observe or
perform any covenant or agreement contained in any
Financing Document (other than those covered by
clause (a) or (b) above) for 30 days after written
notice thereof has been given to the Borrower by the
Agent at the request of any Bank;
(d) any representation, warranty, certification
or statement made by the Borrower in any Financing
Document or any amendment thereof or in any
certificate, financial statement or other document
delivered pursuant to any Financing Document shall
prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail
to make any payment in respect of any Material Debt
within three Domestic Business Days after such
payment is due or, if longer, within any grace
period otherwise applicable to such payment;
(f) any event or condition shall occur which
results in the acceleration of the maturity of
Material Debt or enables the holders of Material
Debt or any Person acting on their behalf to
accelerate the maturity thereof, or any default by
the Borrower or any Subsidiary shall occur which
results in the termination of Material Commitments
prior to the scheduled termination thereof or
enables Persons extending Material Commitments to
terminate such Material Commitments prior to the
scheduled termination thereof;
(g) the Borrower or any Subsidiary (except
Insignificant Subsidiaries) shall commence a
voluntary case or other proceeding seeking
liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or any substantial part of its
property, or shall consent to any such relief or to
the appointment of or taking possession by any such
official in an involuntary case or other proceeding
commenced against it, or shall make a general
assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due,
or shall take any corporate action to authorize any
of the foregoing;
(h) an involuntary case or other proceeding
shall be commenced against the Borrower or any
Subsidiary (except Insignificant Subsidiaries)
seeking liquidation, reorganization or other relief
with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of
its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for
a period of 60 days; or an order for relief shall be
entered against the Borrower or any Subsidiary
(except Insignificant Subsidiaries) under the
federal bankruptcy laws as now or hereafter in
effect;
(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in
excess of $35,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed
under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be
terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could
cause one or more members of the ERISA Group to
incur a current payment obligation in excess of
$35,000,000;
(j) a final judgment or order for the payment
of money in excess of $35,000,000 shall be entered
or filed against the Borrower or any Subsidiary and
such judgment or order shall continue unsatisfied,
unvacated and unstayed for a period of 30 days;
(k) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of 30% or more
of the outstanding shares of common stock of the
Borrower, or Continuing Directors shall cease to
constitute a majority of the Borrower=s board of
directors;
(l) the Borrower shall cease to own, directly
or indirectly, at least 80% of the common stock of
each Subsidiary Guarantor free and clear of all
Liens; or
(m) the Borrower or any Subsidiary Guarantor
shall take any action that causes the guarantee by
any Subsidiary Guarantor set forth in the Subsidiary
Guaranty Agreement to be revoked or invalidated, or
to cease to be in full force and effect (other than
pursuant to Section 4.03 of the Subsidiary Guaranty
Agreement), or the Borrower or any Subsidiary
Guarantor (or any Person acting on behalf of the
Borrower or any Subsidiary Guarantor) shall deny or
disaffirm any of the obligations of any Subsidiary
Guarantor set forth in the Subsidiary Guaranty
Agreement;
then, and in every such event, the Agent shall (i) if
requested by the Required Banks, by notice to the
Borrower terminate the Commitments and they shall
thereupon terminate and (ii) if requested by Banks
holding Notes evidencing at least 60% in aggregate
principal amount of the Loans outstanding, by notice to
the Borrower declare the Notes (together with accrued
interest thereon) to be, and the Notes shall thereupon
become, immediately due and payable without
presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower;
provided that in the case of any of the Events of
Default specified in clause (g) or (h) above with
respect to any Obligor, without any notice to the
Obligors or any other act by the Agent or the Banks,
the Commitments shall thereupon terminate and the Notes
(together with accrued interest thereon) shall become
immediately due and payable without presentment,
demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.
Section 6.2. Notice of Default. The Agent shall
give notice to the Borrower under Section 6.01(c)
promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
Section 6.3. Cash Cover. The Borrower agrees, in
addition to the provisions of Section 6.01 hereof, that
upon the occurrence and during the continuance of any
Event of Default, it shall, if requested by the Agent
upon instruction from Banks having at least 60% of the
aggregate amount of the Outstanding LC Exposures, pay
(and, in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to
any Obligor, forthwith, without any demand or the
taking of any other action by the Agent or any Bank, it
shall pay) to the Agent an amount in immediately
available funds equal to the then aggregate amount of
the LC Liabilities to be held as security therefor for
the benefit of the Banks and the LC Issuing Banks.
ARTICLE 7
The Agent and the Co-Agents
Section 7.1. Appointment and Authorization. Each
Bank irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise
such powers under the Financing Documents as are
delegated to the Agent by the terms thereof, together
with all such powers as are reasonably incidental
thereto.
Section 7.2. Agent and Affiliates. Xxxxxx
Guaranty Trust Company of New York and each Bank
identified as a Co-Agent herein shall have the same
rights and powers under the Financing Documents as any
other Bank and may exercise or refrain from exercising
the same as though it were not the Agent or a Co-Agent.
Xxxxxx Guaranty Trust Company of New York and each Bank
identified as a Co-Agent herein and their respective
affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the
Borrower or any Subsidiary or affiliate of the Borrower
as if it were not the Agent or a Co-Agent hereunder.
Section 7.3. Action by Agent. The obligations of
the Agent under the Financing Documents are only those
expressly set forth therein. Without limiting the
generality of the foregoing, the Agent shall not be
required to take any action with respect to any Default
(except as expressly provided in Article 6) and shall
not have a fiduciary relationship with any Bank.
Section 7.4. Consultation with Experts. The
Agent may consult with legal counsel (who may be
counsel for an Obligor), independent public accountants
and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 7.5. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it
in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct.
Neither the Agent nor any of its affiliates nor any of
their respective directors, officers, agents or
employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with the
Financing Documents or any borrowing hereunder; (ii)
the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction
of any condition specified in Article 3, except receipt
of items required to be delivered to the Agent; or (iv)
the validity, effectiveness or genuineness of the
Financing Documents or any other instrument or writing
furnished in connection therewith. The Agent shall not
incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar
writing) believed by it to be genuine or to be signed
by the proper party or parties.
Section 7.6. Indemnification. Each Bank shall,
ratably in accordance with its Percentage, indemnify
the Agent, its affiliates and their respective
directors, officers, agents and employees (to the
extent not reimbursed by the Borrower) against any
cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees=
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such
indemnitees hereunder.
Section 7.7. Credit Decision. Each Bank
acknowledges that it has, independently and without
reliance upon the Agent, the Co-Agents or any other
Bank, and based on such documents and information as it
has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and
without reliance upon the Agent, the Co-Agents or any
other Bank, and based on such documents and information
as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking
any action under the Financing Documents.
Section 7.8. Successor Agent. The Agent may
resign at any time by giving notice thereof to the
Banks and the Borrower. Upon any such resignation, the
Required Banks shall have the right, after consultation
with the Borrower, to appoint a successor Agent. If no
successor Agent shall have been so appointed by the
Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent
gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed
under the laws of the United States of America or of
any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the
acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and
duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations
hereunder. After any retiring Agent=s resignation
hereunder as Agent, the provisions of this Article
shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent.
Section 7.9. Agent=s Fee. The Borrower shall pay
to the Agent for its own account fees in the amounts
and at the times previously agreed upon between the
Borrower and the Agent.
Section 7.10. Co-Agents. No Bank identified as a
"Co-Agent" herein shall have any right, power,
obligation, liability, responsibility or duty of any
kind under the Financing Documents (except those
applicable to it in its capacity as a Bank) or any
fiduciary relationship with any other Bank.
ARTICLE 8
Change in Circumstances
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair . If on or prior to the first day
of any Interest Period for any Fixed Rate Borrowing:
(a) the Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts)
are not being offered to the Reference Banks in the
relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar
Loans, Banks having 50% or more of the aggregate
principal amount of the affected Loans advise the
Agent that the Adjusted CD Rate or the Adjusted
London Interbank Offered Rate, as the case may be,
as determined by the Agent will not adequately and
fairly reflect the cost to such Banks of funding
their CD Loans or Euro-Dollar Loans, as the case may
be, for such Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent
notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the
obligations of the Banks to make CD Loans or
Euro-Dollar Loans, as the case may be, or to continue
or convert outstanding Loans as or into CD Loans or
Euro-Dollar Loans, as the case may be, shall be
suspended and (ii) each outstanding CD Loan or Euro-
Dollar Loan, as the case may be, shall be converted
into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto, unless the
Borrower shall have elected pursuant to Section 2.10 to
convert such CD Loan or Euro-Dollar Loan into a Fixed
Rate Loan of the other type and the circumstances
described in Sections 8.01(a) and 8.01(b) do not exist
with respect to such other type. Unless the Borrower
notifies the Agent at least two Domestic Business Days
before the date of any Fixed Rate Borrowing for which a
Notice of Borrowing has previously been given that it
elects not to borrow on such date, (i) if such Fixed
Rate Borrowing is a Committed Borrowing, such Borrowing
shall instead be made as a Base Rate Borrowing and (ii)
if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest on the unpaid principal
amount thereof for each day from and including the
first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such
day.
Section 8.2. Illegality. If, on or after the
date hereof, the adoption of any applicable law, rule
or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation
or administration thereof by any governmental
authority, central bank or comparable agency charged
with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not
having the force of law) of any such authority, central
bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans
and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks
and the Borrower, whereupon until such Bank notifies
the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans, or
to continue or convert outstanding Loans as or into
Euro-Dollar Loans, shall be suspended. Before giving
any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending
Office if such designation will avoid the need for
giving such notice and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank.
If such notice is given, each Euro-Dollar Loan of such
Bank then outstanding shall be converted to a Base Rate
Loan either (a) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if
such Bank may lawfully continue to maintain and fund
such Loan as a Euro-Dollar Loan to such day or (b)
immediately if such Bank shall determine that it may
not lawfully continue to maintain and fund such Loan as
a Euro-Dollar Loan to such day.
Section 8.3. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of
any Committed Loan or any obligation to make Committed
Loans or (y) the date of the related Money Market
Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation,
or any change in the interpretation or administration
thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or
its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of
any such authority, central bank or comparable agency
shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement
imposed by the Board of Governors of the Federal
Reserve System, but excluding (i) with respect to any
CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with respect to
any Euro-Dollar Loan any such requirement included in
an applicable Euro-Dollar Reserve Percentage), special
deposit, insurance assessment (excluding, with respect
to any CD Loan, any such requirement reflected in an
applicable Assessment Rate) or similar requirement
against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States
market for certificates of deposit or the London
interbank market any other condition affecting its
Fixed Rate Loans, its Note or its obligation to make
Fixed Rate Loans and the result of any of the foregoing
is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any Fixed Rate
Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be
material, then, within 30 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that, after
the date hereof, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any
change in any such law, rule or regulation, or any
change in the interpretation or administration thereof
by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or any request or directive
regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or
comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or
its Parent) as a consequence of such Bank=s obligations
hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption,
change, request or directive (taking into consideration
its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from
time to time, within 30 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such
reduction.
(c) Each Bank will use its best efforts promptly to
notify the Borrower and the Agent of any event of which
it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant
to this Section and will designate a different
Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under
this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and
attribution methods.
Section 8.4. Taxes. (a) Any and all payments by
the Borrower to or for the account of any Bank or the
Agent hereunder or under any Note shall be made free
and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the
case of each Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of
such Bank=s Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Bank or the
Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums
payable under this Section 8.04) such Bank or the Agent
(as the case may be) receives an amount equal to the
sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority
in accordance with applicable law and (iv) the Borrower
shall furnish to the Agent, at its address referred to
in Section 9.01, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes and any
other excise or property taxes, or charges or similar
levies which arise from any payment made hereunder or
under any Note or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank and
the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other
Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 8.04) paid by such
Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the
date such Bank or the Agent (as the case may be) makes
demand therefor.
(d) Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to
the date of its execution and delivery of this
Agreement in the case of each Bank listed on the
signature pages hereof and on or prior to the date on
which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in
writing by the Borrower (but only so long as such Bank
remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed
by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the
rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of
a trade or business in the United States. If the form
provided by a Bank at the time such Bank first becomes
a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 8.04(a).
(e) For any period with respect to which a Bank has
failed to provide the Borrower with the appropriate
form pursuant to Section 8.04(d) (unless such failure
is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof
by any governmental authority, occurring subsequent to
the date on which a form originally was required to be
provided), such Bank shall not be entitled to
indemnification under Section 8.04(a) with respect to
Taxes imposed by the United States; provided that
should a Bank, which is otherwise exempt from or
subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such
steps as such Bank shall reasonably request to assist
such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to
this Section 8.04, then such Bank will change the
jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment
of such Bank, is not otherwise disadvantageous to such
Bank.
Section 8.5. Base Rate Loans Substituted for
Affected Fixed Rate Loans. (a) If (i) the obligation
of any Bank to make, or continue or convert outstanding
Loans as or into, Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 with respect to
its CD Loans or Euro-Dollar Loans and the Borrower
shall, by at least five Euro-Dollar Business Days=
prior notice to such Bank through the Agent, have
elected that the provisions of this Section 8.05(a)
shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances
giving rise to such suspension or demand for
compensation no longer exist, all Loans which would
otherwise be made by such Bank as (or continued as or
converted into) CD Loans or Euro-Dollar Loans, as the
case may be, shall be made instead as Base Rate Loans
(on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of
the other Banks). If such Bank notifies the Borrower
that the circumstances giving rise to such notice no
longer exist, the principal amount of each such Base
Rate Loan shall be converted into a CD Loan or
Euro-Dollar Loan, as the case may be, on the first day
of the next succeeding Interest Period applicable to
the related CD Loans or Euro-Dollar Loans of the other
Banks.
(b) If (i) any Bank has demanded compensation under
Section 8.03 with respect to its CD Loans or Euro-
Dollar Loans or (ii) the Borrower has become obligated
to pay any Taxes or other amounts to or for the account
of any Bank pursuant to Section 8.04, and the Borrower
shall, by at least five Euro-Dollar Business Days=
prior notice to the Banks through the Agent, have
elected that the provisions of this Section 8.05(b)
shall apply to all of the Banks, then the Borrower
shall, on the fifth Euro-Dollar Business Day following
such notice, prepay in full the then outstanding
principal amount of each outstanding Euro-Dollar Loan
or CD Loan, as the case may be, of each Bank, together
with accrued interest thereon.
Section 8.6. Substitution of Banks. If (i) any
Bank has demanded compensation under Section 8.03 or
(ii) the Borrower has become obligated to pay any Taxes
or other amounts to or for the account of any Bank
pursuant to Section 8.04 (such Bank, in either case,
being called a "Selling Bank"), the Borrower shall have
the right, with the assistance of the Agent, to seek
one or more banks or other institutions satisfactory to
the Borrower, the LC Issuing Banks and the Agent
(collectively, the "Purchasing Banks") willing to
purchase the Selling Bank=s Note and its share of any
unpaid Reimbursement Obligations and assume the
Commitment of the Selling Bank, all on the terms
specified in this Section 8.06. The Selling Bank shall
be obligated to sell its Note and its share of any
unpaid Reimbursement Obligations to such Purchasing
Bank or Banks (which may include one or more of the
Banks) within 15 days after receiving notice from the
Borrower requiring it to do so, at an aggregate price
equal to the outstanding principal amount thereof, plus
unpaid interest accrued thereon to but excluding the
date of sale. In connection with any such sale, and as
a condition thereof, the Borrower shall pay to the
Selling Bank all fees accrued for its account hereunder
to but excluding the date of such sale, plus, if
demanded by the Selling Bank at least two Domestic
Business Days prior to such sale, (i) the amount of any
compensation which would be due to the Selling Bank
under Section 2.14 if the Borrower had prepaid the
outstanding Fixed Rate Loans of the Selling Bank on the
date of such sale and (ii) any additional compensation,
Taxes or other amounts accrued for its account under
Section 8.03 or 8.04, as applicable, to but excluding
said date (it being understood that the Selling Bank
shall retain its right to be compensated after the date
of such sale for any such accrued amounts remaining
unpaid). Upon such sale, the Purchasing Bank or Banks
shall assume the Commitment of the Selling Bank, and
the Selling Bank shall be released from its obligations
hereunder to a corresponding extent. If any Purchasing
Bank is not already one of the Banks, the Selling Bank,
as assignor, such Purchasing Bank, as assignee, the
Borrower, the LC Issuing Banks and the Agent shall
enter into an assignment and assumption agreement
substantially in the form of Exhibit G hereto,
whereupon such Purchasing Bank shall be a Bank party to
this Agreement, shall be deemed to be an Assignee
hereunder and shall have all the rights and obligations
of a Bank with a Commitment equal to its ratable share
of the Commitment of the Selling Bank. Upon the
consummation of any sale pursuant to this Section 8.06,
the Selling Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, each
Purchasing Bank receives a new Note. If the Selling
Bank is also an LC Issuing Bank, its obligation to
issue or extend Letters of Credit (or permit an
automatic extension of an "evergreen" Letter of Credit)
shall terminate concurrently with such sale and its
status as an LC Issuing Bank (but not its right to
indemnification hereunder) shall terminate when the LC
Liabilities relating to all Letters of Credit issued by
it have been reduced to zero.
ARTICLE 9
Miscellaneous
Section 9.1. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to
such party: (x) in the case of the Borrower, an LC
Issuing Bank, a Co-Agent or the Agent, at its address
or telex number or facsimile number set forth on the
signature pages hereof, (y) in the case of any Bank, at
its address or telex number or facsimile number set
forth in its Administrative Questionnaire or (z) in the
case of any party, such other address or telex number
or facsimile number as such party may hereafter specify
for the purpose by notice to the Agent and the
Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number
specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile
transmission, when such facsimile is transmitted to the
facsimile transmission number specified in or pursuant
to this Section 9.01 and telephonic confirmation of
receipt thereof is received, (iii) if given by mail, 72
hours after such communication is deposited in the
mails with first class postage prepaid, addressed as
aforesaid or (iv) if given by any other means, when
delivered at the address specified in this Section;
provided that notices to the Agent or the LC Issuing
Banks under Article 2 or Article 8 shall not be
effective until received.
Section 9.2. No Waivers. No failure or delay by
the Agent, any Bank or any LC Issuing Bank in
exercising any right, power or privilege under any
Financing Document shall operate as a waiver thereof
nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by
law.
Section 9.3. Expenses; Indemnification. (a) The
Borrower shall pay (i) all out-of-pocket expenses of
the Agent, including fees and disbursements of special
counsel for the Agent, in connection with the
preparation and administration of the Financing
Documents, any waiver or consent thereunder or any
amendment thereof or any Default thereunder or any
event or condition reasonably alleged by any Bank to be
a possible Default thereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by
the Agent and each Bank, including fees and
disbursements of counsel, in connection with such Event
of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent,
each Co-Agent and each Bank, their respective
affiliates and the respective directors, officers,
agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from
and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or
judicial proceeding (whether or not such Indemnitee
shall be designated a party thereto) brought or
threatened relating to or arising out of the Financing
Documents (other than the provisions thereof relating
to Letters of Credit as to which indemnification is
provided in Section 2.16(k)) or any actual or proposed
use of proceeds of Loans hereunder; provided that no
Indemnitee shall have the right to be indemnified
hereunder for such Indemnitee=s own gross negligence or
willful misconduct as determined by a court of
competent jurisdiction.
Section 9.4. Sharing of Set-offs. Each Bank
agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive (i)
payment of a proportion of the aggregate amount of
principal and interest due with respect to any Note
held by it which is greater than the proportion
received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to
any Note held by such other Bank or (ii) payment of a
proportion of its participation in the LC Liabilities
which is greater that the proportion received by any
other Bank in respect of its participation in the LC
Liabilities, the Bank receiving such proportionately
greater payment shall purchase such participations in
the Notes or the LC Liabilities (as the case may be)
held by the other Banks, and such other adjustments
shall be made, as may be required so that all such
payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks
pro rata and all such payments with respect to the LC
Liabilities shall be shared pro rata by the Banks
participating therein; provided that nothing in this
Section shall impair the right of any Bank to exercise
any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its
indebtedness under the Notes and the LC Liabilities.
The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder
of a participation in a Note or the LC Liabilities,
whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such
participation as fully as if such holder of a
participation were a direct creditor of the Borrower in
the amount of such participation.
Section 9.5. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended
or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the
Agent or any LC Issuing Bank are affected thereby, by
the Agent or such LC Issuing Bank, as the case may be);
provided that no such amendment or waiver shall, unless
signed by all the Banks, (i) increase or decrease the
Commitment of any Bank (except for a ratable decrease
in the Commitments of all Banks) or subject any Bank to
any additional obligation, (ii) reduce the principal of
or rate of interest on any Loan or any fees hereunder,
(iii) postpone the date fixed for any payment of
principal of or interest on any Loan, any Reimbursement
Obligation or any fees hereunder or for any termination
of any Commitment or (iv) change any provision of this
Section or change the percentage of the Commitments,
the Outstanding Credit Exposures or the Outstanding LC
Exposures or of the aggregate unpaid principal amount
of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any
action under this Section or any other provision of the
Financing Documents.
Section 9.6. 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, except that the
Borrower may not assign or otherwise transfer any of
its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all
of its Loans or its Outstanding LC Exposure. Within
five Domestic Business Days after such grant, unless
such grant consists solely of a participating interest
in the Money Market Loans of such Bank, such Bank shall
notify the Borrower of the name of such Participant and
the amount of its participating interest. In the event
of any such grant by a Bank of a participating interest
to a Participant, whether or not upon notice to the
Borrower or the Agent, such Bank shall remain
responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Bank in
connection with such Bank=s rights and obligations
under this Agreement. Any agreement pursuant to which
any Bank may grant such a participating interest shall
provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the
right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such
participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of
this Agreement described in clause (i), (ii) or (iii)
of Section 9.05 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be
entitled to the benefits of Article 8 with respect to
its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or
(d) below shall be given effect for purposes of this
Agreement only to the extent of a participating
interest granted in accordance with this subsection
(b).
(c) Any Bank may at any time assign to one or more
banks or other institutions (each an "Assignee") all,
or, subject to the next sentence, a proportionate part
of all, of its rights and obligations under this
Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment
and Assumption Agreement in substantially the form of
Exhibit G hereto (an "Assignment and Assumption
Agreement") executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed
consent of the Borrower (which shall not be
unreasonably withheld), the LC Issuing Banks and the
Agent; provided that if an Assignee is another Bank or
an affiliate of such transferor Bank, the consent of
the Borrower and the Agent shall not be required; and
provided further that such assignment may, but need
not, include rights of the transferor Bank in respect
of outstanding Money Market Loans. No assignment of
only a proportionate part of the rights and obligations
of a Bank under this Agreement and the Notes may be
made unless each of (i) the part assigned (i.e., the
"Assigned Amount" set forth in the related Assignment
and Assumption Agreement) and (ii) the part retained by
the transferor Bank equals or exceeds $10,000,000.
Upon execution and delivery of an Assignment and
Assumption Agreement and payment by such Assignee to
such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations
of a Bank with a Commitment as set forth in such
Assignment and Assumption Agreement, and the transferor
Bank shall be released from its obligations hereunder
to a corresponding extent, and no further consent or
action by any party shall be required. Upon the
consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that,
if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor
Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as
to exemption from deduction or withholding of any
United States federal income taxes in accordance with
Section 8.04.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note
to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations
hereunder.
(e) No Assignee, Participant or other transferee of
any Bank=s rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such
Bank would have been entitled to receive with respect
to the rights transferred, unless such transfer is made
with the Borrower=s prior written consent or by reason
of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable
Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater
payment did not exist.
Section 9.7. Collateral. Each of the Banks
represents to the Agent and each of the other Banks
that it in good faith is not relying upon any Amargin
stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for
in this Agreement.
Section 9.8. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws
of the State of New York. The Borrower hereby submits
to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York
and of any New York State court sitting in New York
City for purposes of all legal proceedings arising out
of or relating to the Financing Documents or the
transactions contemplated thereby. The Borrower
irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have
to the laying of the venue of any such proceeding
brought in such a court and any claim that any such
proceeding brought in such a court has been brought in
an inconvenient forum.
Section 9.9. Counterparts; Integration. This
Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same
effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes
the entire agreement and understanding among the
parties hereto and supersedes any and all prior
agreements and understandings, oral or written,
relating to the subject matter hereof.
Section 9.10. Waiver of Jury Trial. EACH OF THE
BORROWER, THE AGENT, THE CO-AGENTS, THE LC ISSUING
BANKS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 9.11. Confidentiality. The Agent, each
LC Issuing Bank and each Bank agrees to keep
confidential any proprietary or financial information
obtained by the Agent, such LC Issuing Bank or such
Bank, as the case may be, based on a review of the
books and records of the Borrower or any Subsidiary
pursuant to Section 5.06 and any other information to
the extent such information has been stated by the
Borrower to be confidential; provided that nothing
herein shall prevent the Agent, any LC Issuing Bank or
any Bank from disclosing such information (i) to the
Agent, any LC Issuing Bank or any other Bank in
connection with the transactions contemplated by the
Financing Documents, (ii) to the officers, directors,
employees, agents, attorneys and accountants of such
party and its affiliates who have a need to know such
information in accordance with customary banking
practices and who receive such information having been
made aware of the restrictions set forth in this
Section, (iii) upon the order of any court or
administrative agency, (iv) upon the request or demand
of any regulatory agency or authority having
jurisdiction over such party, (v) which has been
publicly disclosed, (vi) which has been obtained from
any Person other than the Borrower and its
Subsidiaries, provided that such Person is not known to
it to be bound by a confidentiality agreement with the
Borrower or its Subsidiaries or known to it to be
otherwise prohibited from transmitting the information
to it by a contractual, legal or fiduciary obligation,
(vii) in connection with the exercise of any remedy
under the Financing Documents or (viii) to any actual
or proposed participant or assignee of all or any of
its rights under the Financing Documents, provided that
such proposed participant or assignee shall have agreed
in writing, for the benefit of the Borrower as a third-
party beneficiary, to be bound by the provisions of
this Section.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.5
CONSOLIDATED FREIGHTWAYS, INC.
By /s/ R. Xxx Xxxxxxx
Title: Assistant Treasurer
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile number: (415) 813-
0158
Telephone number: (415) 813-
5321
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxx X. Xxxxx
Title: Vice President
ABN-AMRO BANK, N.V.
By /s/ Xxxxxxx X. French
Title: Group Vice President
& Director
By /s/ X.X. Xxxxxxx
Title: Group Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Xxxxx X. Xxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxxx Xxxxx
Title: Authorized Agent
MELLON BANK, N.A.
By /s/ Xxxx Xxxxx
Title: First Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxxxxx X. Xxxx
Title: Vice President
CREDIT SUISSE
By /s/ Xxxxx X. Xxxxxxx
Title: Associate
By /s/ Xxxxxxx Xxxxxxxxxx
Title: Member of Senior
Management
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By /s/ Yoh Nakahara
Title: General Manager
NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxx X. XxXxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxx Xxxx Xxxxxxxxxx
Title: Vice President
UNITED STATES NATIONAL BANK OF OREGON
By /s/ Xxxx Xxxxxxxx
Title: Assistant Vice President
ABN-AMRO BANK, N.V.,
as LC Issuing Bank
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn:Xxxxxxx X. French
Telex number: 278137 ABNSF UR
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
By /s/ Xxxxxxx X. French
Title: Group Vice President & Director
By /s/ X.X. Xxxxxxx
Title: Group Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as LC Issuing Bank
By /s/ Xxxxx X. Xxxxxxx
Title: Vice President
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn:Xxxxx X. Xxxxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
with a copy to:
Bank of America National Trust and
Savings Association
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn:Xxxx Xxxxxx
Customer Services Officer
Global Payment Operations
Domestic Account Administration 5693
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
THE FIRST NATIONAL BANK OF
CHICAGO, as LC Issuing Bank
By /s/ Xxxxx Xxxxx
Title: Authorized Agent
One First Xxxxxxxx Xxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxxx Xxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
with a copy to:
The First National Bank of Chicago
000 Xxxxx Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxx Xxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as LC Issuing Bank
By /s/ Xxxxx X. Xxxxx
Title: Vice President
X.X. Xxxxxx Services Inc.
Attention: International Trade Services
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
with a copy to:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:Xxxxx Xxxxx
Telex number: 177615
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
ABN-AMRO BANK, N.V.,
as Co-Agent
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn:Xxxxxxx X. French
Telex number: 278137 ABNSF UR
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
By /s/ Xxxxxxx X. French
Title: Group Vice President & Director
By /s/ X.X. Xxxxxxx
Title: Group Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Co-Agent
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn:Xxxxx X. Xxxxxxx
Credit Products 3838
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
By /s/ Xxxxx X. Xxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, as Co-Agent
By /s/ Xxxxx Xxxxx
Title: Authorized Agent
One First Xxxxxxxx Xxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxxx Xxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxxx X. Xxxxx
Title: Vice President
X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention:Xxxxxxx Xxxxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
with a copy to:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:Xxxxx Xxxxx
Telex number: 177615
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
The undersigned Terminating Banks sign this amendment
and restatement of the Existing Agreement solely for the purpose
of satisfying the provisions of Section 9.05 thereof requiring
such an amendment to be signed by all Banks party thereto. The
signatures of the undersigned Terminating Banks shall be
effective when, and only when, the Agent receives for their
account payment of all principal of and accrued interest on
their respective loans outstanding under the Existing Credit
Agreement on the Effective Date.
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
By /s/ Xxxxxxxx Xxxxxxx
Title: Deputy General Manager
FIRST INTERSTATE BANK OF OREGON, N.A.
By /s/ Xxxxxx X. Park
Title: Vice President
COMMITMENT SCHEDULE
bank commitment
Xxxxxx Guaranty Trust Company of New York $35,000,000
ABN-AMRO Bank N.V. $35,000,000
Bank of America National Trust and Savings $35,000,000
Association
The First National Bank of Chicago $35,000,000
Mellon Bank, N.A. $35,000,000
The Bank of New York $25,000,000
Credit Suisse $25,000,000
The Industrial Bank of Japan, Limited $25,000,000
San Francisco Agency
NationsBank of Texas, N.A. $25,000,000
PNC Bank, National Association $25,000,000
Union Bank of California, N.A. $25,000,000
United States National Bank of Oregon $25,000,000
TOTAL $350,000,000
