UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______________ TO __________
Commission File Number 1-7035
CALMAT CO.
(Exact name of registrant as specified in its charter)
Delaware 95-0645790
- - ------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
3200 San Fernando Road, Los Angeles, California 90065
- - ------------------------------------------------------------------
(Address of principal executive offices) (ZIP Code)
Registrant's telephone number, including area code (213) 258-2777
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days.
YES [X] NO [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13 or
15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
YES [ ] NO [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
23,138,769 shares of Common Stock were outstanding at August 3,
1994.
Page 1
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
INDEX
-----
PART I - FINANCIAL INFORMATION PAGE
Item 1. Financial Statements
(a) Consolidated Balance Sheets:
June 30, 1994 and December 31, 1993 3
(b) Consolidated Statements of Operations:
For the Three and Six Months Ended June 30,
1994 and 1993 4
(c) Consolidated Statements of Cash Flow:
For the Six Months Ended June 30, 1994 and
1993 5
(d) Notes to the Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 7
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 10
Signatures 11
Page 2
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
<TABLE>
CALMAT CO.
CONSOLIDATED BALANCE SHEETS
(amounts in thousands)
<CAPTION>
June 30, December 31,
1994 1993
---------- ----------
ASSETS (unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 569 $ 10,596
Trade accounts receivable, less
allowance for discounts and
doubtful accounts ($3,916 in
1994 and $4,174 in 1993) 67,410 63,835
Income taxes receivable 210 1,564
Inventories 6,362 5,581
Prepaid expenses and other 3,778 4,152
Deferred income taxes 7,499 7,499
Installment notes receivable 2,120 2,902
---------- ----------
Total current assets 87,948 96,129
Installment notes receivable and other assets 33,042 32,205
Costs in excess of net assets of subsidiaries 54,639 55,484
Property, plant and equipment, at cost:
Land and deposits 183,631 182,484
Buildings, machinery and equipment 473,053 469,185
Construction in progress 19,769 14,493
---------- ----------
676,453 666,162
Less: Accumulated depreciation
and depletion (257,605) (245,085)
---------- ----------
Property, plant and equipment, net 418,848 421,077
---------- ----------
Total assets $ 594,477 $ 604,895
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 20,509 $ 18,810
Accrued liabilities 25,823 29,293
Notes and bonds payable - current portion 3,897 5,852
Federal and state income taxes 2,091 -
Dividends payable 2,314 2,311
---------- ----------
Total current liabilities 54,634 56,266
Notes and bonds payable - long term portion 99,471 109,635
Other liabilities and deferred credits 17,724 17,724
Deferred income taxes 69,030 70,224
Total liabilities 240,859 253,849
---------- ----------
Stockholders' Equity:
Common stock 23,139 23,109
Additional paid-in capital 39,897 39,202
Retained earnings 290,582 288,735
---------- ----------
Total stockholders' equity 353,618 351,046
---------- ----------
Total liabilities and stockholders'
equity $ 594,477 $ 604,895
========== ==========
See accompanying notes to consolidated financial statements.
</TABLE>
Page 3
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
<TABLE>
CALMAT CO.
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited, amounts in thousands, except per share data)
<CAPTION>
Three months ended Six months ended
June 30, June 30,
1994 1993 1994 1993
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
Net sales and operating revenues$ 93,209 $ 93,432 $ 171,632 $ 155,064
Gains on sales of real estate - 1,720 553 1,720
Other income 442 1,292 981 1,702
--------- --------- --------- ---------
93,651 96,444 173,166 158,486
Costs and expenses:
Cost of products sold and
operating expenses 73,247 74,478 139,158 129,920
Selling, general and administrative
expenses 10,232 10,553 19,826 21,012
Interest expense 1,192 1,833 2,503 3,461
Other expense 768 213 1,170 430
--------- --------- --------- ---------
85,439 87,077 162,657 154,823
--------- --------- --------- ---------
Income before taxes and cumulative
effect of change in accounting
principle 8,212 9,367 10,509 3,663
Federal and state income taxes 3,018 3,747 3,862 1,465
--------- --------- --------- ---------
Income before cumulative effect of
change in accounting principle 5,194 5,620 6,647 2,198
Cumulative effect of change in
accounting principle - - - 919
--------- --------- --------- ---------
Net income $ 5,194 $ 5,620 $ 6,647 $ 3,117
========= ========= ========= =========
Per Share Data:
Income before cumulative effect of change
in accounting principle $ 0.22 $ 0.24 $ 0.29 $ 0.13
Cumulative effect of change in
accounting principle - - - -
--------- --------- --------- ---------
Net income per share $ 0.22 $ 0.24 $ 0.29 $ 0.13
========= ========= ========= =========
Weighted average shares
outstanding 23,219 23,118 23,249 23,119
========= ========= ========= =========
Cash dividends per share $ 0.10 $ 0.10 $ 0.20 $ 0.20
========= ========= ========= =========
See accompanying notes to consolidated financial statements.
</TABLE>
Page 4
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
<TABLE>
CALMAT CO.
CONSOLIDATED STATEMENTS OF CASH FLOW
(unaudited, amounts in thousands)
<CAPTION>
Six months ended
June 30,
1994 1993
---------- ----------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ 6,647 $ 3,117
Depreciation, cost depletion and
amortization 15,056 16,159
Cumulative effect of change in accounting
principle - (919)
Other (5,431) (7,190)
---------- ----------
Cash provided by operating activities 16,272 11,167
---------- ----------
INVESTING ACTIVITIES:
Purchase of property, plant and equipment (11,902) (6,432)
Other 1,642 4,415
---------- ----------
Cash used for investing activities (10,260) (2,017)
----------- ----------
FINANCING ACTIVITIES:
Notes payable to banks (6,000) 4,000
Principal payments on notes and bonds payable (6,119) (818)
Payment of cash dividends (4,625) (6,001)
Other 705 (1,876)
---------- ----------
Cash provided by (used for) financing
activities (16,039) (4,695)
---------- ----------
Increase (decrease) in cash and cash equivalents (10,027) 4,455
Balance, beginning of period 10,596 -
---------- ----------
Balance, end of period $ 569 $ 4,455
========== ==========
See accompanying notes to consolidated financial statements.
</TABLE>
Page 5
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. In the opinion of management, information furnished
herein reflects all adjustments necessary for a fair
presentation of the financial position and results of
operations for the interim periods. There have been no
changes in the significant accounting policies as
discussed in Note 1 of Notes to Financial Statements
contained in the Company's 1993 Annual Report on
Form 10-K, filed with the Commission on March 24, 1994.
2. Earnings per common equivalent share (common shares
adjusted for dilutive effect of common stock options)
have been computed by dividing net income for each period
by the weighted-average equivalent shares of common stock
outstanding.
3. Included in cash at June 30, 1994 and December 31, 1993
was $0.6 million and $1.5 million, respectively, of
proceeds from the sale of real estate held in trust for
potential tax-deferred real estate exchanges.
4. Certain prior year amounts have been restated to conform
to the current year's presentation.
Page 6
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Results of Operations
- - ---------------------
The Company reported net income of $5.2 million, or $0.22 per
share, for the second quarter of 1994 compared with $5.6 million,
or $0.24 per share, for the prior year's second quarter.
The Company reported net income of $6.6 million, or $0.29 per
share, for the six months ended June 30, 1994 compared with net
income of $3.1 million, or $0.13 per share, for the comparable
period in 1993. The 1993 results include an after-tax credit of
$0.9 million, or $0.04 per share, resulting from adoption of the
new accounting standard for accounting for income taxes (SFAS 109).
Business segment information for the three and six months ended
June 30, 1994 and 1993 is as follows:
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
1994 1993 1994 1993
--------- --------- --------- ---------
(unaudited, amounts in thousands)
<S> <C> <C> <C> <C>
Revenues:
Asphalt $ 40,080 $ 41,648 $ 68,982 $ 63,473
Concrete and Aggregates 54,488 54,114 103,791 92,956
Properties - Operations 6,019 5,573 11,865 10,973
Properties - Real Estate Sales - 1,720 553 1,720
Corporate and other 442 1,292 981 1,702
Intersegment sales (7,378) (7,903) (13,006) (12,338)
--------- --------- --------- ---------
$ 93,651 $ 96,444 $ 173,166 $ 158,486
========= ========= ========= =========
</TABLE>
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
1994 1993 1994 1993
--------- --------- --------- ---------
(unaudited, amounts in thousands)
<S> <C> <C> <C> <C>
Income before income taxes and
cumulative effect of change
in accounting principle:
Asphalt $ 4,033 $ 3,138 $ 4,725 $ 1,109
Concrete and Aggregates 5,455 5,258 7,325 2,807
Properties - Operations 2,493 2,519 4,777 4,667
Properties - Real Estate Sales - 1,720 553 1,720
Corporate and unallocated expenses,
net (3,945) (3,871) (7,304) (7,432)
Other income 176 603 433 792
--------- --------- --------- ---------
$ 8,212 $ 9,367 $ 10,509 $ 3,663
========= ========= ========= =========
</TABLE>
Total revenues by segment include both sales to unaffiliated
customers, as reported in the Company's consolidated statement of
operations, and intersegment sales. Intersegment sales represents
sales of aggregates by the Concrete and Aggregates Division to the
Asphalt Division. Income from operations by segment represents
total revenues less direct operating expenses, segment selling,
general and administrative expenses and certain allocated corporate
general and administrative expenses. Corporate and unallocated
expenses include corporate administrative expenses, interest
expense and support expenses not allocated to business segments.
Other income includes interest income, gains/losses on sale of
fixed assets and other miscellaneous items.
Page 7
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
Concrete and Aggregate Division
- - -------------------------------
Revenues in the Concrete and Aggregates Division were $54.5 million
in the second quarter of 1994, essentially unchanged compared with
the corresponding 1993 period. Revenues were $103.8 million in the
first six months of 1994, up $10.8 million, or 12% compared with
the same period in 1993. The flat revenue for the current quarter
was due primarily to lower aggregates sales volume, offset by
higher average selling prices for both aggregates and ready mixed
concrete. The revenue increase for the current year's six month
period was due to the combination of higher average selling prices
for both aggregates and ready mixed concrete and higher unit sales
volume for ready mixed concrete. Aggregates sales volume by
category is shown below.
<TABLE>
Aggregates - Tons Sold
(amounts in thousands)
<CAPTION>
Three months ended Six months ended
June 30, June 30,
1994 1993 1994 1993
--------- --------- --------- ---------
(unaudited, amounts in thousands)
<C> <C> <C> <C>
Sales to outside customers 4,369 4,978 8,218 8,300
Used in Ready Mixed Concrete 674 688 1,323 1,263
Sales to Asphalt Division 1,299 1,456 2,306 2,266
--------- --------- --------- ---------
6,342 7,122 11,847 11,829
========= ========= ========= =========
</TABLE>
Ready mixed concrete sales volume was 485,000 cubic yards in the
second quarter of 1994 compared with 480,000 cubic yards sold in
the corresponding 1993 period, and 967,000 cubic yards in the first
six months of 1994 compared with 884,000 cubic yards sold in the
first six months of 1993.
The Division's pre-tax income from operations was $5.5 million in
the most recent quarter compared with $5.3 million in the year
earlier quarter. Ready mixed concrete gross profit was higher in
the second quarter due to an 8% increase in average selling prices,
partially offset by higher unit productions costs, in large part
due to the increased cost of purchased cement. Ready mixed
concrete sales volumes were essentially unchanged. Aggregates
gross profit was lower in the second quarter due primarily to an
11% volume decline which was partially offset by higher average
selling prices. Despite some increase in volumes related to the
January 17, 1994 Los Angeles earthquake, second quarter 1994
volumes compared unfavorably with 1993 because of less
infrastructure work, more inclement weather in the 1994 second
quarter and work deferred from the 1993 first quarter to the second
quarter because of weather.
Pre-tax income from operations for the first six months of 1994
increased to $7.3 million compared with $2.8 million in the similar
1993 period. Gross profit from ready mixed concrete sales was
higher in the first six months of 1994 due to a 9% increase in both
average selling prices and unit sales volumes. Aggregates gross
profit for the same period was also slightly higher due to a 8%
increase in average selling prices, offset partially by higher unit
production costs. Year-to date aggregates sales volumes were
essentially unchanged compared with the prior year.
Asphalt Division
- - ----------------
Revenues in the Asphalt Division were $40.1 million in the second
quarter of 1994, down $1.5 million or 4%, compared with $41.6
million in the corresponding 1993 period. Revenues were $69.0
million in the first six months of 1994, up $5.5 million, or 9%,
from the first six months of 1993. The revenue decrease for the
current quarter was due to lower sales volume, partially offset by
higher average selling prices. The revenue increase for the
current year's six month period was due to higher sales volumes and
average selling prices. Approximately 12% to 14% of the Division's
total revenues consists of sales of miscellaneous products and
services such as Guardtop, Oil Spread, Petromat, equipment rentals,
etc. The Division's pre-tax income from operations increased to
$4.0 million in the most recent quarter compared with $3.1 million
in the year earlier quarter. A 5% increase in average selling
prices, partially offset by a combination of slightly higher unit
production costs and a 10% decline in volume accounted for the
income improvement. The decline in asphalt volumes during the
current quarter was caused by the same factors affecting aggregates
volumes discussed above. Pre-tax income from operations was $4.7
million in the first six months of 1994 compared with $1.1 million
in the prior period due to sales volumes and average selling prices
increasing by 3% and 4%, respectively over the prior year.
Page 8
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
Properties Division
- - -------------------
Revenues in the Properties Division, excluding gains on sales of
real estate, were $6.0 million in the second quarter of 1994, up
$0.4 million from revenues of $5.6 million in the corresponding
1993 period, and $11.9 million in the first six months of 1994, up
$0.9 million from $11.0 million in the first six months of 1993.
The increase in revenue for the quarter and six-month period is
primarily due to increased revenues from landfill operations due in
part to increased activity related to the Los Angeles earthquake.
Pre-tax income from operations includes income from: rental of
properties, self-storage operations, commercial inert landfills and
gains from real estate sales. Pre-tax income from operations was
$2.5 million for 1994's second quarter compared with $4.2 million
in the prior year period, and $5.3 million for the first six months
of 1994 compared with $6.4 million in the first six months of 1993.
There were no real estate sales in the current quarter compared
with $1.7 million in gains from real estate sales in the second
quarter of 1993. Gains from real estate sales were $0.6 million
for the first six months of 1994 compared with $1.7 million in the
similar 1993 period.
Liquidity and Capital Resources
- - -------------------------------
Cash and cash equivalents amounted to $0.6 million at June 30, 1994
compared with $10.6 million at December 31, 1993.
Cash provided by operating activities was $16.3 million for the six
months ended June 30, 1994. Cash used for investing activities was
$10.3 million, including $11.9 million for the purchase of
property, plant, and equipment, offset by receipts on notes
receivable of $1.3 million. Cash used for financing activities was
$16.0 million, including $4.6 million for cash dividends to
stockholders and a $12.1 million net decrease in debt. Overall,
cash and cash equivalents decreased $10.0 million during the first
six months of 1994.
Working capital totaled $33.3 million at June 30, 1994, down from
$39.9 million at December 31, 1993.
Total consolidated long-term and short-term borrowings at June 30,
1994 and December 31, 1993 were $103.4 million and $115.5 million,
respectively. Debt as a percent of total capitalization was 22.6%
and 24.8%, at June 30, 1994 and December 31, 1993, respectively.
During 1993, the Company restricted capital expenditures in order
to conserve cash. Capital expenditures in 1994 are expected to
return to, or exceed, prior year spending levels. Management
believes that cash provided by operations and existing borrowing
arrangements will provide adequate funds for current commitments
and expected working capital requirements during 1994.
Page 9
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are included as part of the
Company's Report on Form 10-Q for the quarterly
period ended June 30, 1994, as required by Item 601
of Regulation S-K.
Exhibit 10.1: First Amended and Restated Credit
Agreement among CalMat Co., Bank of America National
Trust and Savings Association, as Agent, and the
Other Financial Institutions Parties Hereto, dated as
of June 30, 1994.
Exhibit 10.2: Amended and Restated 1993 Stock Option
Plan for Officers, Directors and Key Employees of
CalMat Co., filed with the Commission on March 16,
1994 as Exhibit "A" to the Company's definitive Proxy
Statement dated March 17, 1994, is incorporated
herein by reference.
(b) No reports on Form 8-K were filed during the quarter
ended June 30, 1994.
Page 10
- - -----------------------------------------------------------------------------
<PAGE>
<PAGE>
CALMAT CO.
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of
1934, Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
CALMAT CO.
_________________________________
(Registrant)
Date: August 11, 1994 By: /s/ Paul Stanford
_____________________________
Paul Stanford
Senior Vice President -
Administration, General Counsel
and Secretary
Date: August 11, 1994 By: /s/ Edward J. Kelly
_____________________________
Edward J. Kelly
Senior Vice President,
Treasurer and Chief Accounting
Officer
Page 11
- - -----------------------------------------------------------------------------
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of June 30, 1994
among
CALMAT CO.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTIES HERETO,
Arranged by
BA SECURITIES, INC.
<PAGE>
CALMAT CO.
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
Page
Section 1. DEFINITIONS . . . . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . 1
1.2 Computation of Time Periods . . . . . . . . . . 23
1.3 Accounting Terms. . . . . . . . . . . . . . . . 23
1.4 Other Definitional Provisions . . . . . . . . . 23
Section 2. AMOUNT AND TERMS OF COMMITMENTS
AND COMMITTED LOANS . . . . . . . . . . . . . 24
2.1 Committed Loans . . . . . . . . . . . . . . . . 24
2.2 Bid Loans . . . . . . . . . . . . . . . . . . . 26
2.3 Fees. . . . . . . . . . . . . . . . . . . . . . 34
2.4 Reductions of Commitments; Extension of
Commitments . . . . . . . . . . . . . . . . . . 34
2.5 Optional Prepayments and Mandatory Payments
and Prepayments . . . . . . . . . . . . . . . . 35
2.6 Interest. . . . . . . . . . . . . . . . . . . . 36
2.7 Interest Rate Determination and Protection. . . 38
2.8 Illegality and Eurodollar Rate Loans. . . . . . 39
2.9 Voluntary Conversion or Continuation of
Loans . . . . . . . . . . . . . . . . . . . . . 40
2.10 Increased Costs and Funding Losses;
Substitution of a Bank. . . . . . . . . . . . . 41
2.11 Taxes . . . . . . . . . . . . . . . . . . . . . 43
2.12 Payments and Computations . . . . . . . . . . . 45
2.13 Sharing of Payments, Etc. . . . . . . . . . . . 46
2.14 Use of Proceeds . . . . . . . . . . . . . . . . 47
Section 3. CONDITIONS TO EFFECTIVENESS;
CONDITIONS WITH RESPECT TO LOANS. . . . . . . 47
3.1 Conditions to Effectiveness . . . . . . . . . . 47
3.2 Conditions to All Loans . . . . . . . . . . . . 50
Section 4. REPRESENTATIONS AND WARRANTIES. . . . . . . . . 50
4.1 Organization, Powers, Good Standing and
Subsidiaries. . . . . . . . . . . . . . . . . . 51
4.2 Authorization of Borrowing, etc.. . . . . . . . 51
4.3 Financial Condition . . . . . . . . . . . . . . 52
4.4 Changes, Etc. . . . . . . . . . . . . . . . . . 52
4.5 Litigation; Adverse Facts . . . . . . . . . . . 52
4.6 Payment of Tax. . . . . . . . . . . . . . . . . 53
4.7 Materially Adverse Agreements; Performance. . . 53
4.8 Governmental Regulation . . . . . . . . . . . . 54
4.9 Securities Activities . . . . . . . . . . . . . 54
4.10 Employee Benefit Plans. . . . . . . . . . . . . 54
4.11 Patents, Trademarks and Licenses. . . . . . . . 54
4.12 Title to Properties; Liens. . . . . . . . . . . 55
4.13 Environmental Protection. . . . . . . . . . . . 55
4.14 Labor Matters . . . . . . . . . . . . . . . . . 56
4.15 Disclosure. . . . . . . . . . . . . . . . . . . 56
Section 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . 57
5.1 Financial Statements and Other Reports. . . . . 57
5.2 Corporate Existence, etc. . . . . . . . . . . . 60
5.3 Payment of Taxes and Claims; Tax
Consolidation . . . . . . . . . . . . . . . . . 60
5.4 Maintenance of Properties; Insurance. . . . . . 61
5.5 Equal Security for Obligations; No Further
Negative Pledges. . . . . . . . . . . . . . . . 61
5.6 Inspection; Records, etc.; Confidentiality. . . 62
5.7 Compliance with Laws, etc.. . . . . . . . . . . 63
5.8 Further Assurances. . . . . . . . . . . . . . . 63
5.9 Environmental Notice and Inspection . . . . . . 63
Section 6. NEGATIVE COVENANTS. . . . . . . . . . . . . . . 65
6.1 Liens . . . . . . . . . . . . . . . . . . . . . 65
6.2 Investments . . . . . . . . . . . . . . . . . . 66
6.3 Financial Covenants . . . . . . . . . . . . . . 66
6.4 Restriction on Fundamental Changes. . . . . . . 67
6.5 Restriction on Asset Sales. . . . . . . . . . . 67
6.6 Sales and Lease-Backs . . . . . . . . . . . . . 68
6.7 Transactions with Stockholders and
Affiliates. . . . . . . . . . . . . . . . . . . 69
6.8 Conduct of Business . . . . . . . . . . . . . . 69
6.9 Independence of Covenants . . . . . . . . . . . 69
6.10 Use of Proceeds . . . . . . . . . . . . . . . . 70
Section 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 70
7.1 Failure to Make Payments When Due . . . . . . . 70
7.2 Breach of Warranty. . . . . . . . . . . . . . . 70
7.3 Breach of Covenants . . . . . . . . . . . . . . 70
7.4 Breach of Other Agreements. . . . . . . . . . . 70
7.5 Bankruptcy. . . . . . . . . . . . . . . . . . . 71
7.6 Judgments . . . . . . . . . . . . . . . . . . . 72
7.7 Dissolution . . . . . . . . . . . . . . . . . . 72
7.8 ERISA . . . . . . . . . . . . . . . . . . . . . 72
7.9 Control of the Borrower . . . . . . . . . . . . 73
Section 8. THE AGENT . . . . . . . . . . . . . . . . . . . 74
8.1 Authorization and Appointment . . . . . . . . . 74
8.2 Delegation of Duties. . . . . . . . . . . . . . 74
8.3 Liability of Agent. . . . . . . . . . . . . . . 75
8.4 Reliance by Agent . . . . . . . . . . . . . . . 75
8.5 Notice of Default . . . . . . . . . . . . . . . 76
8.6 Credit Decision . . . . . . . . . . . . . . . . 76
8.7 Indemnification . . . . . . . . . . . . . . . . 77
8.8 Agent in Individual Capacity. . . . . . . . . . 77
8.9 Successor Agent . . . . . . . . . . . . . . . . 78
8.10 Withholding Tax . . . . . . . . . . . . . . . . 78
Section 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . 80
9.1 Amendments, Etc.. . . . . . . . . . . . . . . . 80
9.2 Notices, Etc. . . . . . . . . . . . . . . . . . 81
9.3 No Waiver; Remedies . . . . . . . . . . . . . . 82
9.4 Costs and Expenses. . . . . . . . . . . . . . . 82
9.5 Indemnification . . . . . . . . . . . . . . . . 82
9.6 Binding Effect. . . . . . . . . . . . . . . . . 84
9.7 Assignments and Participations. . . . . . . . . 84
9.8 Severability. . . . . . . . . . . . . . . . . . 87
9.9 Survival of Warranties and Certain
Agreements. . . . . . . . . . . . . . . . . . . 87
9.10 Headings. . . . . . . . . . . . . . . . . . . . 88
9.11 Applicable Law; Jurisdiction; Waiver of Jury
Trial . . . . . . . . . . . . . . . . . . . . . 88
9.12 Execution in Counterparts; Effectiveness. . . . 89
9.13 Obligations Several . . . . . . . . . . . . . . 89
9.14 Complete Agreement. . . . . . . . . . . . . . . 89
9.15 Assignments from Original Agreement;
Amendment and Restatement.. . . . . . . . . . . 89
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF ASSIGNMENT AND ACCEPTANCE
IV FORM OF COMPLIANCE CERTIFICATE
V FORM OF OPINION OF BORROWER'S COUNSEL
VI FORM OF COMPETITIVE BID REQUEST
VII FORM OF INVITATION FOR COMPETITIVE BIDS
VIII FORM OF COMPETITIVE BID
IX FORM OF BID LOAN NOTE
X FORM OF COMMITTED LOAN NOTE
SCHEDULES
A COMMITMENTS
B APPLICABLE LENDING OFFICES
C SUBSIDIARIES
D EMPLOYEE BENEFIT PLANS
E EXISTING LIENS
F ENVIRONMENTAL MATTERS
<PAGE>
CALMAT CO.
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT is dated
as of June 30, 1994, and is entered into by and among CALMAT CO.,
a Delaware corporation (the "Borrower"), the financial
institutions listed on the signature pages hereto (such financial
institutions, together with each Person that may become a party
hereto pursuant to Section 9.7 hereof, are referred to herein
individually as a "Bank" and collectively as the "Banks"), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"),
as agent for the Banks (in its capacity as agent, the "Agent").
PRELIMINARY STATEMENT
The Borrower, the Agent and the Banks desire to amend and
restate the Original Agreement (as hereafter defined) on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the
Borrower, the Banks and the Agent agree as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms
The following terms used in this Agreement shall have the
following meanings:
"Absolute Rate" has the meaning specified in Section
2.2B(iii)(b)(D).
"Absolute Rate Auction" means a solicitation of
Competitive Bids setting forth Absolute Rates pursuant to
Section 2.2B.
"Absolute Rate Bid Loan" means a Bid Loan that bears
interest at a rate determined with reference to the Absolute
Rate.
"Adjusted CD Rate" means a rate per annum equal to the
following:
CD Base Rate + CD Assessment Rate
1.00 - CD Rate Reserve Percentage
"CD Base Rate" means, for the Interest Period for each CD
Rate Loan comprising part of the same Borrowing, the rate of
interest determined by the Agent to be the average (rounded,
if necessary, upward to the nearest whole multiple of 1/100th
of 1%) of the prevailing rates per annum bid at the time the
Agent quotes the rate to the Borrower on the first day of such
Interest Period by at least one certificate of deposit dealer
of recognized standing selected by each Reference Bank for the
purchase at face value from such Reference Bank of its
certificates of deposit in an amount substantially equal to
the CD Rate Loan comprising part of such Borrowing and for a
period equal to such Interest Period. "CD Assessment Rate"
means, for any day of such Interest Period, the rate
determined by the Agent as equal to the annual assessment rate
in effect on such day payable to the FDIC by a member of the
Bank Insurance Fund that is classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification within the
meaning of 12 C.F.R. section 327.3(d)) for insuring time deposits at
offices of such member in the United States; or, in the event
that the FDIC shall at any time hereafter cease to assess time
deposits based upon such classifications or successor
classifications, equal to the maximum annual assessment rate
in effect on such day that is payable to the FDIC by
commercial banks (whether or not applicable to any particular
Bank) for insuring time deposits at offices of such banks in
the United States. "CD Rate Reserve Percentage" means, for
any day of such Interest Period, the maximum reserve
percentage (expressed as a decimal, rounded upward to the next
1/100th of 1%), as determined by the Agent, in effect on such
day (including any ordinary, marginal, emergency,
supplemental, special and other reserve percentages),
prescribed by the Board of Governors of the Federal Reserve
System for determining the maximum reserves to be maintained
by member banks of the Federal Reserve System with deposits
exceeding $1,000,000,000 for new non-personal time deposits
for a period comparable to such Interest Period and in an
amount of $100,000 or more.
"Adjusted Eurodollar Rate" means, for the Interest Period
for each Eurodollar Rate Loan comprising part of the same
Borrowing, an interest rate per annum equal to the rate per
annum (rounded upward to the nearest whole multiple of 1/100th
of 1%) obtained by dividing (i) the Eurodollar Rate by (ii) a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage (as defined below) for such Interest Period. The
"Eurodollar Rate Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect
on such day (whether or not applicable to any Bank) under
regulations issued from time to time by the Board of Governors
of the Federal Reserve System for determining the maximum
reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities") having a term comparable to such Interest Period
for the Interest Period for each Eurodollar Rate Loan
comprising part of the same Borrowing.
"Affiliate", as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For the purposes of
this definition, "control" (including with correlative
meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agent" means BofA and any successor thereto appointed
pursuant to Section 8.9.
"Agent Auction" means a Bid Loan auction managed by the
Agent in accordance with Section 2.2B.
"Agent-Related Persons" means BofA and any successor
agent arising under Section 8.9, together with their
respective Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this First Amended and Restated Credit
Agreement, as it may hereafter be amended, supplemented,
further restated or otherwise modified from time to time.
"Applicable Lending Office" means, with respect to any
Bank, such Bank's Domestic Lending Office in the case of a
Base Rate Loan, such Bank's CD Lending Office in the case of a
CD Rate Loan and such Bank's Eurodollar Lending Office in the
case of a Eurodollar Rate Loan.
"Applicable Amount" means, for any period, the amount
(expressed in basis points) shown in the table below when the
interest coverage ratio calculated in accordance with Section
6.3C is as indicated:
(In basis points)
=============================================================================
Consolidated [ * ] [ * ]
Interest [ * ] [ * ] [ * ] [ * ]
Coverage
Ratio
=============================================================================
Facility Fee [ * ] [ * ] [ * ] [ * ]
=============================================================================
Adjusted [ * ] [ * ] [ * ] [ * ]
Eurodollar
Rate
=============================================================================
Adjusted [ * ] [ * ] [ * ] [ * ]
CD Rate
=============================================================================
* Confidential Treatment Requested
The Applicable Amount shall be based on the Consolidated
Interest Coverage Ratio set forth in the most recent
Compliance Certificate, and shall be effective from and
including the date the Agent receives such Compliance
Certificate to but excluding the date on which Agent receives
the next Compliance Certificate; provided, however, that if
Agent does not receive a Compliance Certificate by the date
required by Section 5.1(iii), the Applicable Amount shall,
effective as of such date, be the highest Applicable Amount to
but excluding the date the Agent receives such Compliance
Certificate. Subject to the foregoing proviso, until the
delivery of the first Compliance Certificate after the
Effective Date, the Applicable Amount shall be that indicated
by the certificate delivered pursuant to Section 3.1H
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Asset Sale" means the sale, transfer or other
disposition by the Borrower or any of its Subsidiaries to any
Person of any asset (other than sales and discounts of
accounts receivable) of the Borrower or any such Subsidiary.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Bank and an Eligible Assignee,
and accepted by the Agent, in substantially the form of
Exhibit III annexed hereto.
"Attorney Costs" means and includes all reasonable fees
and disbursements of any law firm or other external counsel,
the reasonable allocated cost of internal legal services and
all disbursements of internal counsel.
"Authorized Officer" means the Chief Executive Officer,
Chief Financial Officer, Controller or Treasurer of the
Borrower; provided, however, that solely for the purposes of
requesting a Loan hereunder or giving notice with respect to
the conversion or continuation of any Loan, the Assistant
Treasurer shall also be an Authorized Officer.
"Banks" has the meaning assigned to that term in the
introductory paragraph of this Agreement.
"BofA" has the meaning assigned to that term in the
introductory paragraph of this Agreement.
"Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy" as now and hereafter in effect, or
any successor statute.
"Base Rate" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time which
rate per annum shall at all times be equal to the higher of:
(i) [ * ]
(ii) [ * ]
* Confidential Treatment Requested
"Base Rate Loan" means a Loan which bears interest as
provided in Section 2.6A.
"Bid Borrowing" means a Borrowing hereunder consisting of
one or more Bid Loans made to the Borrower on the same day by
one or more Banks.
"Bid Loan" means a Loan by a Bank to the Borrower
pursuant to Section 2.2A, which may be a Eurodollar Rate Bid
Loan or an Absolute Rate Bid Loan.
"Bid Loan Bank" means, in respect of any Bid Loan, the
Bank making such Loan to the Borrower.
"Bid Loan Notes" means those master promissory notes, if
any, issued by the Borrower pursuant to Section 9.7G, payable
to the Banks and evidencing the Bid Loans made by the Banks
pursuant to Section 2.2, such notes being substantially in the
form of Exhibit IX annexed hereto, as such notes may hereafter
be amended, supplemented or otherwise modified from time to
time.
"Book Value of Assets Sold" means, with respect to any
Asset Sale, the net book value of the assets sold pursuant to
such Asset Sale calculated in conformity with GAAP.
"Borrower" has the meaning assigned to that term in the
introductory paragraph of this Agreement.
"Borrower Auction" means a Bid Loan auction managed by
the Borrower in accordance with Section 2.2B.
"Borrowing" means either or both of a Committed Borrowing
and a Bid Borrowing.
"Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of
the State of California, New York, Texas or is a day on which
banking institutions located in such states are authorized by
law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments
in connection with Eurodollar Rate Loans and Eurodollar Rate
Bid Loans, any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks
in Dollar deposits in the Eurodollar market.
"CD Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "CD Lending Office"
opposite its name on Schedule B annexed hereto or in the
Assignment and Acceptance pursuant to which it became a Bank
(or, if no such office is specified, its Domestic Lending
Office) or such other office of such Bank as such Bank may
from time to time specify to the Borrower and the Agent.
"CD Rate Loan" means a Loan which bears interest as
provided in Section 2.6B.
"Capital Lease", as applied to any Person, means any
lease of any property (whether real, personal or mixed) by
that Person as a lessee that, in conformity with GAAP, should
be accounted for as a capital lease on the balance sheet of
that Person.
"Cash" means money, currency, a credit balance in a
deposit account maintained with any commercial bank organized
under the laws of the United States of America or any state
thereof or the District of Columbia having combined capital
and surplus of not less than $500,000,000 or that portion of a
credit balance in a deposit account which is fully insured by
the FDIC.
"Cash Equivalents" means (i) marketable direct
obligations issued or unconditionally guarantied by the United
States Government or issued by any agency thereof and backed
by the full faith and credit of the United States, in each
case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any
state of the United States of America or any political
subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having a rating of at
least "A2" by Standard & Poor's Corporation and at least "P2"
by Moody's Investors Service, Inc.; (iii) commercial paper
maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at
least "A2" by Standard & Poor's Corporation and at least "P2"
by Moody's Investors Service, Inc.; (iv) certificates of
deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any Bank or by any
other commercial bank organized under the laws of the United
States of America or any state thereof or the District of
Columbia having combined capital and surplus of not less than
$500,000,000; (v) repurchase agreements with any commercial
bank organized under the laws of the United States of America
or any state thereof or the District of Columbia having
combined capital and surplus of not less than $500,000,000,
with any Bank or with any investment bank with its long-term
debt rated at least "A" by Standard & Poor's Corporation and
at least "A2" by Moody's Investors Service, Inc. and having
combined capital and surplus of not less than $500,000,000, in
each case relating to marketable direct obligations issued or
unconditionally guarantied by the United States Government or
issued by any agency thereof and backed by the full faith and
credit of the United States; provided that the terms of such
agreements comply with the guidelines set forth in the Federal
Financial Institutions Examination Council Supervisory Policy-
Repurchase Agreements of Depository Institutions With
Securities Dealers and Others as adopted by the Comptroller of
the Currency on October 31, 1985; and (vi) mutual funds which
invest primarily in the types of investments enumerated in
clauses (i) through (v) above.
"Commitment" means the commitment or commitments of a
Bank or the Banks to make Loans as set forth in Section 2.1A.
The amount of the original Commitment of each Bank is set
forth on the Schedule A annexed hereto and such Commitment
shall be adjusted from time to time pursuant to Section 2.4.
"Committed Borrowing" means a Borrowing hereunder
consisting of one or more Committed Loans made to the Borrower
on the same day by the Banks ratably according to their
respective Pro Rata Shares and, in the case of CD Rate Loans
and Eurodollar Rate Loans, having the same Interest Periods.
"Committed Loan" means a Loan by a Bank to the Borrower
pursuant to Section 2.1, which may be a Base Rate Loan, a CD
Rate Loan or a Eurodollar Rate Loan.
"Committed Loan Notes" means the promissory notes, if
any, issued by the Borrower to the Banks pursuant to Section
9.7G evidencing the Committed Loans made by the Banks pursuant
to Section 2.1, such notes being substantially in the form of
Exhibit X annexed hereto, as such notes may hereafter be
amended, supplemented, restated or otherwise modified from
time to time.
"Competitive Bid" means an offer by a Bank to make a Bid
Loan in accordance with Section 2.2.
"Competitive Bid Request" has the meaning assigned to
that term in Section 2.2B(i).
"Compliance Certificate" means a certificate
substantially in the form of Exhibit IV annexed hereto,
delivered to the Agent and the Banks by the Borrower pursuant
to Section 5.1(iii).
"Consolidated", when used with respect to any of the
terms defined herein, refers to such terms as reflected in a
consolidation of the accounts of the Borrower and its
Subsidiaries in conformity with GAAP (including giving effect
to the elimination of all intercompany items in conformity
with GAAP).
"Consolidated EBIT" means, for any period, the sum
(without duplication) of, (i) Consolidated Net Income for such
period, (ii) provision for taxes in respect of, or measured
by, income or excess profits, calculated on a Consolidated
basis for such period, (iii) Consolidated Interest Expense for
such period, and (iv) Consolidated Rent Payments paid or
payable during such period.
"Consolidated Funded Indebtedness" means, for the
Borrower and its Subsidiaries on a consolidated basis, the sum
of (a) all obligations and liabilities, whether current or
long-term, for borrowed money, (b) that portion of obligations
with respect to Capital Leases which is capitalized on the
consolidated balance sheet of the Borrower and its
Subsidiaries and (c) the amount included in the definition of
Indebtedness with respect to Contingent Obligations, all
determined in conformity with GAAP.
"Consolidated Interest Coverage Ratio" means, as of date
of determination, for the Borrower and its Subsidiaries on a
consolidated basis, the ratio of Consolidated EBIT to
Consolidated Interest Expense for the four previous
consecutive fiscal quarters ending on or prior to such date,
all determined in conformity with GAAP.
"Consolidated Interest Expense" means, for any period,
the sum, without duplication, of (i) total interest expense
(including that portion attributable to Capital Leases in
conformity with GAAP) of the Borrower and its Subsidiaries for
such period on a Consolidated basis, including the fees
referred to in Section 2.3A, (ii) the aggregate amount of all
interest and finance charges on Consolidated Off Balance Sheet
Obligations for such period, and (iii) Consolidated Rent
Payments paid or payable during such period.
"Consolidated Net Income" means, for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a
Consolidated basis determined in conformity with GAAP for such
period taken as a single accounting period; provided that
there shall be excluded (i) the income (or loss) of any Person
(other than a Subsidiary of the Borrower) in which any other
Person (other than the Borrower or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower
or any of its Subsidiaries by such Person during such period,
but net of any additional Investment made by the Borrower or
any of its Subsidiaries in such Person during such period,
(ii) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into
or consolidated with the Borrower or any of its Subsidiaries
or that Person's assets are acquired by the Borrower or any of
its Subsidiaries, and (iii) the income of any Subsidiary of
the Borrower to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that
income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary.
"Consolidated Net Worth" means, at any date of
determination, the consolidated stockholders' equity of the
Borrower and its Subsidiaries, determined in accordance with
GAAP.
"Consolidated Off Balance Sheet Obligations" means, as at
any date of determination, the sum (without duplication) of
(i) any Indebtedness of an Affiliate or a Subsidiary of the
Borrower or any of their respective Subsidiaries or any
partnership in which the Borrower or any of its Subsidiaries
or any of their respective Affiliates is a general partner,
(ii) any outstanding amount of accounts receivable or notes
sold by the Borrower or any of its Subsidiaries, (iii) any
non-recourse financing of real property, equipment or other
asset by the Borrower or any of its Subsidiaries or
Affiliates, (iv) any obligations under a sale and lease back
transaction entered into by the Borrower or any of its
Subsidiaries as lessee, and (v) any other transaction,
regardless of form, which is the functional equivalent of
borrowing by the Borrower or any of its Subsidiaries;
provided, that (a) such Indebtedness or obligation shall be
included only to the extent that it does not appear on the
Consolidated financial statements of the Borrower and (b) if
such Indebtedness or other obligation is owed by an entity
other than the Borrower or one of its wholly-owned
Subsidiaries, it shall be reduced by the amount attributable
to other ownership interests.
"Consolidated Rent Payments" means, for any period, the
aggregate amount of the rental payments and other amounts
incurred by the Borrower and its Subsidiaries as lessees under
all leases of the Borrower or its Subsidiaries during such
period, excluding (a) any amounts incurred in connection with
Capital Leases to the extent such amounts are included in the
calculation of Consolidated Interest Expense and (b) rental
payments on land leases which permit the Company or its
Subsidiaries to extract minerals or other raw materials.
"Contingent Obligation", as applied to any Person, means
any direct or indirect liability, contingent or otherwise, of
that Person with respect to any Indebtedness, lease, dividend,
letter of credit, accounts receivable or other obligation of
another, including, without limitation and without
duplication, any such obligation directly or indirectly
guarantied, endorsed (otherwise than for collection or deposit
in the ordinary course of business), co-made, or discounted or
sold with recourse by that Person, or in respect of which that
Person is otherwise directly or indirectly liable, including,
without limitation, any such obligation for which that Person
is in effect liable through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for
the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain the solvency or
any balance sheet item, level of income or other financial
condition of the obligor of such obligation, or to make
payment for any products, materials or supplies or for any
transportation, services or lease regardless of the non-
delivery or non-furnishing thereof, in any case if the purpose
or intent of such agreement is to provide assurance that such
obligation will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part)
against loss in respect thereof; provided, however, that
excluded from this definition shall be contingent obligations
in an aggregate amount not to exceed $55,000,000, to the
extent such obligations are indemnified by Onoda Cement Co.,
Ltd. pursuant to the agreement among the Borrower, California
Portland Cement Co., and Onoda U.S.A., Inc. dated July 19,
1988. The amount of any Contingent Obligation shall be equal
to the amount of the obligation so guarantied or otherwise
supported.
"Contractual Obligation", as applied to any Person, means
any provision of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is
subject.
"Conversion" and "Convert" and "Converted" each refers to
a conversion of Eurodollar Rate Loans, CD Rate Loans or Base
Rate Loans, into Loans of another Type in accordance with the
terms of this Agreement.
"Dollars" or the sign "$" means the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any
Bank, the office of such Bank specified as its "Domestic
Lending Office" opposite its name on Schedule B annexed hereto
or in the Assignment and Acceptance pursuant to which it
became a Bank, or such other office of such Bank as such Bank
may from time to time specify to the Borrower and the Agent.
"Effective Date" means the date on or before June 30,
1994 that is the date on which the conditions set forth in
Section 3.1 are satisfied or waived.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof and
(ii) a commercial bank organized under the laws of any other
country, or a political subdivision thereof, provided that
(a) such bank is acting through a branch or agency located in
the United States or (b) such bank is organized under the laws
of a country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such
country and has surplus and capital of at least $500,000,000;
and (iii) a Person that is primarily engaged in the business
of commercial banking and that is (A) a Subsidiary of a Bank,
(B) a Subsidiary of a Person of which a Bank is a Subsidiary,
or (C) a Person of which a Bank is a Subsidiary.
"Employee Benefit Plan" means any "employee benefit plan"
which is defined in Section 3(3) of ERISA and which is at the
relevant time maintained or contributed to by the Borrower or
any ERISA Affiliate of the Borrower.
"Environmental Liabilities and Costs" means all
liabilities, obligations, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs
and expenses (including all reasonable fees, disbursements and
expenses of counsel, expert and consulting fees and costs of
investigation and feasibility studies), fines, penalties,
sanctions and interest, incurred as a result of any claim or
demand, by any Person, whether based in contract, tort,
implied or express warranty, strict liability, criminal or
civil statute, including any Hazardous Materials Law, permit
or agreement with a governmental authority or other Person,
arising from environmental, health or safety conditions
related to, or the Release or threatened Release by reason of,
the past, present or future operations of the Borrower or any
of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any
governmental authority for Environmental Liabilities and
Costs.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor
statute.
"ERISA Affiliate", as applied to any Person, means
(i) any corporation which is at the relevant time a member of
a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that
Person is at the relevant time a member; (ii) any trade or
business (whether or not incorporated) which is at the
relevant time a member of a group of trades or businesses
under common control within the meaning of Section 414(c) of
the Internal Revenue Code of which that Person is at the
relevant time a member; and (iii) any member of an affiliated
service group within the meaning of Section 414(m) or (o) of
the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or
business described in clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those
for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code
with respect to any Pension Plan (whether or not waived in
accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect
to any Pension Plan or the failure to make any required
contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by the Borrower or any of its ERISA
Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting
in liability pursuant to Sections 4063 or 4064 of ERISA; (v)
the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition
which might constitute grounds under ERISA for the PBGC to
initiate proceedings for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi)
the imposition of liability in excess of $5,000,000 on the
Borrower or any of its ERISA Affiliates pursuant to Sections
4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of the Borrower
or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of
ERISA) from any Multiemployer Plan if there is any liability
therefor in excess of $5,000,000, or the receipt by the
Borrower or any of its ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Sections 4241 or 4245 of ERISA, or that it intends
to terminate or has terminated under Sections 4041A or 4042 of
ERISA which would result in a liability in excess of
$5,000,000; (viii) the occurrence of an act or omission which
could give rise to the imposition on the Borrower or any of
its ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Code or under Sections 409,
502(c), (i) or (1) or 4071 of ERISA in respect of any Employee
Benefit Plan which would result in a liability in excess of
$5,000,000; (ix) the assertion of a claim (other than routine
claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against
the Borrower or any of its ERISA Affiliates in connection with
any such plan which would result in a liability in excess of
$5,000,000; or (x) receipt from the Internal Revenue Service
or any successor thereto of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to
be qualified under Section 401(a) of the Internal Revenue
Code) to qualify under Section 401(a) of the Internal Revenue
Code, or notice of the failure of any trust forming part of
any Pension Plan to qualify for exemption from taxation under
Section 401(a) of the Internal Revenue Code; or (xi) the
imposition of a lien pursuant to Sections 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect
to any Pension Plan.
"Eurodollar Lending Office" means, with respect to any
Bank, the office of such Bank specified as its "Eurodollar
Lending Office" opposite its name on Schedule B annexed hereto
or in the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office is specified, its
Domestic Lending Office) or such other office of such Bank as
such Bank may from time to time specify to the Borrower and
the Agent.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Loan or Eurodollar Rate Bid Loan, as
applicable, comprising part of the same Borrowing, an interest
rate per annum determined by the Agent to be the arithmetic
average of the rates per annum at which deposits in Dollars
are offered by each Reference Bank in London, England to prime
banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the Eurodollar Rate
Loan or Eurodollar Rate Bid Loan, as applicable, comprising
part of such Borrowing and for a period equal to such Interest
Period. If any Reference Bank fails to provide its offered
rate to the Agent by 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period, the
Eurodollar Rate shall be determined on the basis of the
average of the offered rate(s) furnished by the Reference
Bank(s) which so notify the Agent at or prior to said 11:00
A.M. (London time).
"Eurodollar Rate Auction" means a solicitation of
Competitive Bids setting forth a Eurodollar Rate Bid Margin
pursuant to Section 2.2B.
"Eurodollar Rate Bid Loan" means any Bid Loan that bears
interest at a rate determined with reference to the Eurodollar
Rate.
"Eurodollar Rate Bid Margin" has the meaning assigned to
that term in Section 2.2B(iii)(b)(C).
"Eurodollar Rate Loan" means a Committed Loan which bears
interest as provided in Section 2.6C.
"Event of Default" means each of the events set forth in
Section 7.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"FDIC" means the Federal Deposit Insurance Corporation or
any successor thereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period
to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or if
such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds
brokers of recognized standing selected by it.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of
the accounting profession.
"Hazardous Materials" means as of the date hereof and as
of any Funding Date (i) any chemical, material or substance
defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous waste," "restricted hazardous waste," or
"toxic substances" or words of similar import under any
applicable local, state or federal law or under the
regulations adopted or promulgated pursuant thereto,
including, without limitation, Hazardous Materials Laws,
(ii) any oil, petroleum or petroleum derived substance, any
drilling fluids, produced waters and other wastes associated
with the exploration, development or production of crude oil,
any flammable substances or explosives, any radioactive
materials, (iii) asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, electrical
equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of
fifty parts per million, and (iv) any other chemical, material
or substance, exposure to which would reasonably be expected
to pose a hazard to the health and safety of the owners or
occupants or any Persons surrounding any of the properties
owned or occupied by the Borrower or any of its Subsidiaries.
"Hazardous Materials Laws" means all statutes,
ordinances, orders, rules, regulations, or decrees relating to
human health or protection of the environment, including,
without limitation, those relating to fines, orders,
injunctions, penalties, damages, contribution, cost recovery
compensation, losses or injuries resulting from the Release or
threatened Release of Hazardous Materials and to the
generation, use, storage, transportation, or disposal of
Hazardous Materials, in any manner applicable to the Borrower
or any of its Subsidiaries or any of their respective
properties, each as in effect as of the date hereof and as of
any Funding Date.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of
obligations with respect to Capital Leases which is properly
classified as a liability on a balance sheet in conformity
with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing
obligations for borrowed money, (iv) any obligation owed for
all or any part of the deferred purchase price of property or
services which purchase price is due more than six months from
the date of incurrence of the obligation in respect thereof or
evidenced by a note or similar written instrument, (v) the
proceeds received by such Person from the sale or discount of
accounts receivable net of collections which are retained by
the Borrower, and (vi) all indebtedness secured by any Lien on
any property or asset owned or held by that Person regardless
of whether the indebtedness secured thereby shall have been
assumed by that Person or is non-recourse to the credit of
that Person, and (vii) the amount of Contingent Obligations
(except with respect to guaranties resulting from endorsement
of negotiable instruments for collection in the ordinary
course of business) not incurred in the ordinary course of
business outstanding in excess of 10% of Consolidated Net
Worth at any time.
"Indemnified Liabilities" has the meaning assigned to
that term in Section 9.5.
"Initial Aggregate Book Value" means the Book Value of
all accounts receivable of the Borrower and its Subsidiaries
on the date any Permitted Accounts Receivable Financing
Facility is entered into or increased (excluding extensions or
concurrent replacements where the amount is not increased).
"Interest Period" means, (i) with respect to each CD Rate
Loan comprising part of the same Borrowing, the period
commencing on the Funding Date of such CD Rate Loan or the
date of the Conversion of any Base Rate Loan or Eurodollar
Rate Loan into such a CD Rate Loan and ending on the last day
of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period with respect to a CD
Rate Loan shall be 30, 60, 90 or 180 days, as the Borrower
may, upon notice received by the Agent not later than 9:00
A.M. (San Francisco time) on the second Business Day prior to
the first day of such Interest Period, select; (ii) with
respect to each Eurodollar Rate Loan comprising part of the
same Borrowing, the period commencing on the Funding Date of
such Eurodollar Rate Loan or the date of the Conversion of any
Base Rate Loan or CD Rate Loan into such a Eurodollar Rate
Loan and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period
with respect to a Eurodollar Rate Loan shall be one, two,
three or six months, as the Borrower may, upon notice received
by the Agent not later than 9:00 A.M. (San Francisco time) on
the third Business Day prior to the first day of such Interest
Period, select; and (iii) with respect to each Bid Loan
comprising the same Borrowing, the period commencing on the
Funding Date of such Bid Loan and ending on the last day of
the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period with respect
to (a) an Absolute Rate Bid Loan shall be at least seven (7)
days and not more than one hundred and eighty-three (183) days
and (b) a Eurodollar Rate Bid Loan shall be a one, two, three
or six-month Interest Period, as the Borrower may, in
accordance with the provisions of Section 2.2, select;
provided that the foregoing provisions relating to Interest
Periods are subject to the following:
(i) the Borrower may not select any Interest Period
which ends after the Maturity Date;
(ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day; provided that
with respect to a Eurodollar Rate Loan or a Eurodollar
Rate Bid Loan, if such extension would cause the last day
of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iii)there shall be no more than ten (10) Interest
Periods with respect to CD Rate Loans, Eurodollar Rate
Loans and Bid Loans outstanding at any one time.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and any successor
statute.
"Inventory" means, for any Person as at any date of
determination, all goods held by such Person for sale or to be
furnished under contracts for services and all goods that have
been so furnished, and all work in process and raw materials
used or consumed in the business of such Person.
"Investment", as applied to any Person, means any direct
or indirect purchase or other acquisition by that Person of,
or a beneficial interest in, stock or other securities of any
other Person, or any direct or indirect loan, advance (other
than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution by that Person to
any other Person, including all Indebtedness and accounts
receivable from that other Person which did not arise from
sales to that other Person in the ordinary course of business.
The amount of any Investment (for purposes of the limitations
set forth in Section 6.2) shall be the original cost of such
Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"Invitation for Competitive Bids" means a solicitation
for Competitive Bids, substantially in the form of Exhibit VII
annexed hereto.
"Lien" means any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind, including any
conditional sale or other title retention agreement, any lease
in the nature thereof, and any agreement to give any security
interest, the filing of any financing statement naming the
owner of the asset to which such lien relates as debtor, under
the UCC or any comparable law and any sale or discount of
accounts receivables, and any contingent or other agreement to
provide any of the foregoing.
"Loan" or "Loans" means one or more of the loans made by
the Banks pursuant to Section 2.1 and/or Section 2.2 and
refers to a Base Rate Loan, CD Rate Loan, a Eurodollar Rate
Loan or a Bid Loan.
"Loan Documents" means this Agreement and the Notes.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Material Adverse Effect" means a material adverse effect
upon (i) the business, operations, properties, assets or
condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, or (ii) the ability of the
Borrower to perform, or of the Banks to enforce, the
Obligations.
"Maturity Date" means the earlier of (i) June 30, 1997,
or if such date is not a Business Day, the Business Day next
succeeding such date, or if the Commitments are extended to a
later date in accordance with the provisions of Section 2.4C,
such later date and (ii) the date upon which the Commitments
terminate in accordance with Section 2.4 or any other
provision contained in this Agreement.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 3(37) of ERISA to which the Borrower or any
of its ERISA Affiliates is contributing or ever has
contributed or to which the Borrower or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute.
"Notes" means one or more of the Bid Loan Notes or
Committed Loan Notes or any combination thereof.
"Notice of Borrowing" means a notice substantially in the
form of Exhibit I annexed hereto with respect to a proposed
Borrowing.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit II annexed hereto
delivered by the Borrower to the Agent pursuant to Section
2.8.
"Obligations" means all obligations of every nature from
time to time by the Borrower to any Bank, the Agent, any
Affiliate of any Bank or the Agent, or Person entitled to
indemnification pursuant to Section 9.5 of this Agreement.
The term includes, without limitation, all interest, charges,
expenses, fees, Attorney Costs and any other sum chargeable to
the Borrower under this Agreement or any of the other Loan
Documents.
"Officers' Certificate" means a certificate executed on
behalf of the Borrower, by (i) any of its Chief Executive
Officer, its President or its Chief Financial Officer and (ii)
any of its Treasurer, Controller or Assistant Treasurer, in
each case acting in such capacity; provided that every
Officers' Certificate with respect to the compliance with a
condition precedent to the making of any Loans hereunder shall
include (a) a statement that the officers making or giving
such Officers' Certificate have read such condition and any
definitions or other provisions contained in this Agreement
relating thereto, (b) a statement that, in the opinion of the
signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such
condition has been complied with, and (c) a statement as to
whether, in the opinion of the signers, such condition has
been complied with.
"Operating Lease" means, as applied to any Person, any
lease (including, without limitation, leases that may be
terminated by the lessee at any time) of any property (whether
real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"Original Agreement" means the Credit Agreement dated as
of June 30, 1992, as amended, among the Borrower, the lenders
party thereto and BofA as agent thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation or
any successor thereto.
"Pension Plan" means any Employee Benefit Plan, other
than a Multiemployer Plan, which is subject to Section 412 of
the Internal Revenue Code or Section 302 or ERISA.
"Permitted Accounts Receivable Financing Facility" means
a facility involving the sale or discount of accounts
receivable of the Borrower and its Subsidiaries that does not
involve the creation of a Lien or negative pledge on any
accounts receivable not so sold or discounted.
"Permitted Liens" means the following types of Liens
(other than any Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not at the time
required by the covenant on payment of taxes;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
similar Persons and other Liens imposed by law incurred
in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such
reserve or other appropriate provisions, if any, as shall
be required by GAAP shall have been made therefor;
(iii)Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social
security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-
money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) any attachment or judgment Lien, unless the
judgment it secures (a) shall not, within thirty days
after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not
have been discharged within thirty days after the
expiration of any such stay or (b) shall be in effect and
a period of ten days or less remains prior to any
proposed sale thereunder;
(v) easements, rights of way, servitudes or zoning
or building restrictions and other minor encumbrances on
real property which do not in the aggregate materially
interfere with or impair the operation of such property
for the purposes for which it is or may reasonably be
expected to be used;
(vi) Liens in existence on the Effective Date and
set forth on Schedule E annexed hereto;
(vii)Liens on property used in the conduct of the
Borrower's business to secure Indebtedness which was
incurred to purchase, or to finance or refinance the
purchase price of, the property encumbered by such Lien;
(viii) Liens on assets and properties acquired
after the date of this Agreement, provided, however, that
such Liens existed at the time the respective assets and
properties were acquired and were not created in
anticipation thereof; and
(ix) Liens securing Indebtedness that is non-
recourse to the credit of Borrower or any of its
Subsidiaries other than in connection with the sales of
accounts receivable.
"Person" means and includes natural persons,
corporations, limited partnerships, general partnerships,
joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal
entities, and governments and agencies and political
subdivisions thereof.
"Potential Event of Default" means a condition or event
which, after notice or lapse of time or both, would constitute
an Event of Default if that condition or event were not cured
or waived within any applicable grace or cure period, if any.
"Principal Subsidiary" means, as of any date of
determination, a Subsidiary of the Borrower owning assets
comprising at least 15% of the Consolidated Net Worth of the
Borrower.
"Pro Rata Share" means, with respect to the Commitment of
each Bank, or, if such Commitment has terminated, the Loans or
participations held by such Bank with respect to such
Commitment, the percentage designated as such Bank's Pro Rata
Share under the name of such Bank on the applicable signature
page of this Agreement with respect to such Commitment, in
each case as such percentage may be adjusted as a result of
assignments permitted under Section 9.7.
"Reference Banks" means BofA, Chemical Bank and
NationsBank of Texas, N.A.
"Register" has the meaning specified in Section 9.7C.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, unlawful disposal, discharge,
other dispersal or leaching of any Hazardous Materials into
the environment (including, without limitation, the
abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials) or into
or out of any property owned, used or operated by the Borrower
or any of its Subsidiaries, including the movement of any
Hazardous Materials through or in the air, soil, surface
water, groundwater or property.
"Remedial Action" means all actions required to (i) clean
up, remove, treat or in any other way address Hazardous
Materials in the environment; (ii) prevent the Release or
threat of Release or minimize the further Release of Hazardous
Materials so they do not endanger or threaten to endanger
public health or welfare or the environment; or (iii) perform
pre-remedial studies and investigations and post-remedial
monitoring and care.
"Requisite Banks" means at least three Banks holding at
any time fifty-one percent (51%) or more of the Commitments,
or, if the Commitments have been terminated, of the then
aggregate unpaid principal amount of the Loans.
"SEC" means the Securities and Exchange Commission, and
any successor thereto.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"Subsidiary", with respect to any Person, means any
corporation, association or other business entity of which
more than 50% of the total voting power of shares of stock
entitled to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Total Capitalization" means the sum of Consolidated
Funded Indebtedness and Consolidated Net Worth.
"Type" has the meaning specified in Section 2.1B(ii).
1.2 Computation of Time Periods
In this Agreement, in the computation of periods of time
from a specified date to a later specified date, unless otherwise
specifically provided, the word "from" means "from and including"
and the words "to" and "until" each means "to but excluding".
1.3 Accounting Terms
All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. In the event that
there are any changes in GAAP from the date hereof and such
changes result in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then
the Borrower and the Agent shall enter into negotiations in order
to amend such provisions of this Agreement as are necessary to
equitably reflect such changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall
be the same after such changes as if such changes had not been
made.
1.4 Other Definitional Provisions
References to "Sections" and "Section" shall be to
Sections and a Section, respectively, of this Agreement unless
otherwise specifically provided. Any of the terms defined in
Section 1.1 may, unless the context otherwise requires, be used
in the singular or the plural depending on the reference.
Section 2. AMOUNT AND TERMS OF COMMITMENTS
AND COMMITTED LOANS
2.1 Committed Loans
A. Commitments. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make Committed
Loans to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Maturity Date
in an aggregate amount not to exceed at any time outstanding the
amount set forth opposite such Bank's name on the signature pages
hereof, or, if such Bank has entered into one or more Assignments
and Acceptances, set forth for such Bank in the Register
maintained by the Agent, as such amount may be reduced or
rendered unavailable pursuant to Section 2.2B(ix) or 2.4 or any
other provision contained in this Agreement (such Bank's
"Commitment"). The aggregate original amount of the Commitments
is one hundred twenty-five million dollars ($125,000,000). Each
Committed Borrowing of CD Rate Loans and Eurodollar Rate Loans
shall be in an aggregate amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. Each
Committed Borrowing of Base Rate Loans shall be in an aggregate
amount of not less than $250,000. Each Committed Borrowing shall
be made by the Banks proportionately to their Pro Rata Shares of
the available Commitments. At no time shall the sum of (x) the
outstanding aggregate principal amount of all Committed Loans
made by all Banks plus (y) the outstanding aggregate principal
amount of all Bid Loans made by all Banks exceed the aggregate
Commitments then in effect. Within the limits of each Bank's
Commitment, the Borrower may from time to time, borrow, repay and
reborrow under this Section 2.1A. The Banks' Commitments shall
expire on the Maturity Date and all Loans and all other amounts
owed hereunder with respect to the Loans shall be paid in full no
later than that date.
B. Notice of Borrowing. Each Borrowing of Committed
Loans shall be made on irrevocable notice, given not later than
9:00 A.M. (San Francisco time), (i) in the case of Base Rate
Loans, on the Business Day of such proposed Borrowing, (ii) in
the case of CD Rate Loans, on the second Business Day prior to
the date of the proposed Borrowing, and (iii) in the case of
Eurodollar Rate Loans, on the third Business Day prior to the
date of the proposed Borrowing, by the Borrower to the Agent,
which shall give to each Bank prompt notice thereof by telecopy,
telex or cable. Each such Notice of Borrowing shall be by
telecopy, telex or cable, confirmed immediately in writing, in
substantially the form of Exhibit I annexed hereto, specifying
therein (i) the requested Funding Date (which shall be a Business
Day), (ii) whether such Borrowing is to consist of Base Rate
Loans, CD Rate Loans or Eurodollar Rate Loans (each a "Type" of
Loan), (iii) in the case of CD Rate Loans or Eurodollar Rate
Loans, the requested Interest Period therefor, and (iv) the
requested aggregate amount of such Borrowing. In addition, a
Notice of Borrowing with respect to a Committed Loan shall
certify that the amount of the proposed Borrowing when added to
the aggregate principal amount of outstanding Committed Loans and
Bid Loans immediately prior to such Borrowing will not exceed the
Commitments then in effect. Each Bank shall, before 10:00 A.M.
(San Francisco time) on the date of such Borrowing, make
available for the account of its Applicable Lending Office to the
Agent, such Bank's Pro Rata Share of such Borrowing by depositing
same day funds in the Agent's Account No. 12330-15415, re:
CalMat Co., Attention: Global Agency #5596, maintained at BofA,
Global Agency, ABA No. 1210-0035-8-BKAMER-SF or in such other
account as the Agent may from time to time specify in writing to
the Banks. Upon fulfillment of the applicable conditions set
forth in Section 3, the Agent will make the proceeds of the
Committed Loans received by it available to the Borrower, solely
by promptly crediting the Borrower's account maintained at such
office of the Agent.
With respect to any Committed Borrowing, in lieu of
delivering the above described Notice of Borrowing, the Borrower
may give the Agent telephonic notice (followed immediately by
telecopy delivery to the Agent of a Notice of Borrowing) by the
required time of any notice of proposed Borrowing under this
Section 2.1B. Neither the Agent nor any Bank shall incur any
liability to the Borrower or any other Bank in acting upon any
telephonic notice referred to above (or with respect to any other
Borrowing hereunder) which the Agent believes in good faith to
have been given by a duly authorized officer or other Person
authorized to borrow on behalf of the Borrower or for otherwise
acting in good faith under this Section 2.1B and in making any
Loans in accordance with this Agreement pursuant to any
telephonic notice.
C. Indemnification. Each Notice of Borrowing (or
telephonic notice in lieu thereof) shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify each Bank
against any monetary loss, cost or expense incurred by such Bank
as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Committed
Borrowing the applicable conditions set forth in Section 3,
including, without limitation, any loss (including loss of
anticipated profits which loss shall be limited to the present
value of the difference between the interest rate payable on the
applicable Loan for the remainder of the applicable Interest
Period and the rate at which the Bank could redeploy its funds
for the remainder of the applicable Interest Period), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the
Committed Loan to be made by such Bank as a part of such
Borrowing when such Loan, as a result of such failure, is not
made on such date; provided, however, that such indemnification
shall not include any obligation with respect to consequential
damages.
D. Failure to Fund. Unless the Agent shall have
received notice from a Bank prior to the date of any such
Committed Borrowing that such Bank will not make available to the
Agent such Bank's Pro Rata Share of such Borrowing, the Agent may
assume that such Bank has made such amount available to the Agent
on the date of such Borrowing in accordance with Section 2.1B and
the Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that a Bank not
providing such notice shall not have so made its Pro Rata Share
of such Borrowing available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on
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, the interest rate applicable at
the time to Loans comprising such Borrowing 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 as part of such Borrowing for
purposes of this Agreement. Any Bank failing to fund a Loan when
it is required to do so hereunder shall indemnify the Borrower
against any monetary loss, cost or expense incurred by the
Borrower as a result thereof; provided, however, that such
indemnification shall not include any obligation with respect to
consequential damages.
The failure of any Bank to make the Loan to be made by it
as part of any Committed Borrowing shall not relieve any other
Bank of its obligation, if any, hereunder to make its Committed
Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to
be made by such other Bank on the date of any Committed
Borrowing.
2.2 Bid Loans.
A. Bid Loan Borrowings. In addition to Committed
Borrowings pursuant to Section 2.1, each Bank severally agrees
that the Borrower may, as set forth in Section 2.2B, from time to
time request the Banks during the period from the Effective Date
until the Maturity Date to submit offers to make Bid Loans to the
Borrower; provided, however, that the Banks may, but shall have
no obligation to, submit such offers and the Borrower may, but
shall have no obligation to, accept any such offers; and provided
further that (a) at no time shall the outstanding aggregate
principal amount of all Bid Loans made by all Banks, plus the
outstanding aggregate principal amount of all Committed Loans
made by all Banks exceed the aggregate Commitments then in
effect; (b) at no time shall the number of different Interest
Periods for Bid Loans then outstanding plus the number of
different Interest Periods for Committed Loans then outstanding
exceed ten (10); and (c) at no time shall the outstanding
aggregate principal amount of all Bid Loans made by all Banks
exceed the aggregate Commitments then in effect. At the
discretion of the Borrower, any Bid Loan auction may be either an
Agent Auction conducted in accordance with the terms set forth
below for an Agent Auction, or a Borrower Auction conducted in
accordance with the terms set forth below for a Borrower Auction.
B. Procedure for Bid Borrowings.
(i) Agent Auctions. (a) When the Borrower
wishes to request the Banks to submit offers to make Bid
Loans pursuant to an Agent Auction hereunder, it shall
transmit to the Agent by telephone call, followed
promptly by facsimile transmission, a notice in
substantially the form of Exhibit VI (a "Competitive Bid
Request") so as to be received no later than 9:00 A.M.
(San Francisco time) (x) four (4) Business Days prior to
the date of a proposed Bid Borrowing in the case of a
Eurodollar Rate Auction, (y) one (1) Business Day prior
to the date of a proposed Bid Borrowing in the case of an
Absolute Rate Auction or (z) on the date of a Bid
Borrowing proposed to be made on the Effective Date in
the case of an Absolute Rate Auction, specifying:
(A) the date of such Borrowing, which
shall be a Business Day;
(B) the aggregate amount of such
Borrowing, which shall be a minimum amount of
$2,000,000 or in multiples of $1,000,000 in excess
thereof;
(C) whether the Competitive Bids
requested are to be for Eurodollar Rate Bid Loans or
Absolute Rate Bid Loans; and
(D) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period.
Section 2.2A(c), the Borrower may not request Competitive
Bids for more than three (3) Interest Periods in a single
Competitive Bid Request and may not request Competitive
Bids in Agent Auctions and Borrower Auctions together
more than three (3) times in any business week or more
than eight (8) times in any calendar month. To
compensate the Agent for its services in managing an
Agent Auction relating to the prospective Bid Loans
requested by such Competitive Bid Request, the Borrower
shall pay to the Agent for its account in connection with
each Agent Auction, a bid fee of $150.00 for each Bank
submitting a Competitive Bid. In connection with each
Agent Auction, the Borrower shall pay a nonrefundable
minimum bid fee of $300.00 together with the submission
of each Competitive Bid Request. If more than two Banks
submit a Competitive Bid, the Borrower shall pay the
remainder of such bid fee for such Competitive Bid
Request on the Business Day following the submission of
Competitive Bids in response thereto. The bid fee shall
be nonrefundable and payable whether or not any of such
Competitive Bids is accepted.
(b) Upon receipt of a Competitive Bid Request,
the Agent will promptly send to the Banks by telex or
facsimile transmission an Invitation for Competitive Bids
substantially in the form of Exhibit VII, which shall
constitute an invitation by the Borrower to each Bank to
submit Competitive Bids offering to make Bid Loans to
which such Competitive Bid Request relates in accordance
with this Section 2.2.
(ii) Borrower Auctions. When the Borrower wishes to
request the Banks to submit offers to make Bid Loans pursuant
to a Borrower Auction hereunder, it shall transmit to each
Bank and the Agent by telephone call, followed promptly by
facsimile transmission (with a copy to the Agent), an
Invitation for Competitive Bids substantially in the form of
Exhibit VII so as to be received no later than 9:00 A.M. (San
Francisco time) (x) four (4) Business Days prior to the date
of a proposed Bid Borrowing in the case of a Eurodollar Rate
Auction, or (y) one (1) Business Day prior to the date of a
proposed Bid Borrowing in the case of an Absolute Rate
Auction, specifying:
(a) the date of such Borrowing, which shall be
a Business Day;
(b) the aggregate amount of such Borrowing,
which shall be a minimum amount of $2,000,000 or in
multiples of $1,000,000 in excess thereof;
(c) whether the Competitive Bids requested are
to be for Eurodollar Rate Bid Loans or Absolute Rate Bid
Loans; and
(d) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period.
Subject to Section 2.2A(c), the Borrower may not request
Competitive Bids for more than three (3) Interest Periods in a
single Invitation for Competitive Bids and may not request
Competitive Bids in Agent Auctions and Borrower Auctions
together more than three (3) times in any business week or
more than eight (8) times in any calendar month.
(iii)(a) Each Bank may at its discretion submit a
Competitive Bid containing an offer or offers to make Bid
Loans in response to any Invitation for Competitive Bids.
Each Competitive Bid must comply with the requirements of
this Section 2.2B(iii) and must be submitted (A) to the
Agent, in the case of an Agent Auction, or (B) to the
Borrower in the case of a Borrower Auction, in each case
by telex or facsimile transmission at the office for
notices set forth on the signature pages hereto not later
than (A) 7:00 A.M. (San Francisco time) three Business
Days prior to the proposed date of Borrowing, in the case
of a Eurodollar Rate Auction or (B) 7:00 A.M. (San
Francisco time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction; provided that, in the
case of an Agent Auction, Competitive Bids submitted by
BofA (or any Affiliate of BofA) in the capacity of a Bank
may be submitted, and may only be submitted, if BofA or
such Affiliate notifies the Agent of the terms of the
offer or offers contained therein not later than (A) 6:45
A.M. (San Francisco time) three (3) Business Days prior
to the proposed date of Borrowing, in the case of a
Eurodollar Rate Auction or (B) 6:45 A.M. (San Francisco
time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction.
(b) Each Competitive Bid shall be in
substantially the form of Exhibit VIII specifying
therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan
for which such Competitive Bid is being made, which
principal amount (x) may be equal to, greater than
or less than the Commitment of the quoting Bank,
(y) must be $2,000,000 or in multiplies of
$1,000,000 in excess thereof, and (z) may not exceed
the principal amount of Bid Loans for which
Competitive Bids were requested; and the maximum
aggregate principal amount of all Bid Loans for
which such Competitive Bid is being made;
(C) in case the Borrower elects a
Eurodollar Rate Auction, the margin above or below
the Eurodollar Rate (the "Eurodollar Rate Bid
Margin") offered for each such Bid Loan, expressed
as a percentage (rounded to the nearest 1/100th of
1%) to be added to or subtracted from the applicable
Eurodollar Rate Bid Loan and the Interest Period
applicable thereto;
(D) in case the Borrower elects an
Absolute Rate Auction, the rate of interest per
annum (rounded to the nearest 1/100th of 1%) (the
"Absolute Rate") offered for each such Bid Loan; and
(E) the identity of the quoting Bank.
A Competitive Bid may contain up to three (3) separate offers
by the quoting Bank with respect to each Interest Period
specified in the related Invitation for Competitive Bids.
(c) Any Competitive Bid shall be disregarded
if it:
(A) is not substantially in conformity
with Exhibit VIII or does not specify all of the
information required by Section 2.2B(iii)(b);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bids; or
(D) arrives after the time set forth in
Section 2.2B(iii)(a).
(iv) In the case of an Agent Auction, promptly on
receipt and not later than 7:30 A.M. (San Francisco time)
three (3) Business Days prior to the proposed date of
Borrowing in the case of a Eurodollar Rate Auction, or 7:30
A.M. (San Francisco time) on the proposed date of Borrowing in
the case of an Absolute Rate Auction, the Agent will notify
the Borrower of the terms (a) of any Competitive Bid submitted
by a Bank that is in accordance with Section 2.2B(iii), and
(b) of any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid
submitted by such Bank with respect to the same Competitive
Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Agent unless such subsequent Competitive
Bid is submitted solely to correct a manifest error in such
former Competitive Bid and only if received within the times
set forth in this Section 2.2B(iii)(a). The Agent's notice to
the Borrower in an Agent Auction shall specify (A) the
aggregate principal amount of Bid Loans for which offers have
been received for each Interest Period specified in the
related Competitive Bid Request; and (B) the respective
principal amounts and Eurodollar Rate Bid Margins or Absolute
Rates, as the case may be, so offered. Subject only to the
provisions of Section 3.2 hereof and the provisions of this
Section 2.2B(iv), any Competitive Bid shall be irrevocable
except with the written consent of the Agent given on the
written instructions of the Borrower.
(v) Not later than 9:00 A.M. (San Francisco time)
three (3) Business Days prior to the proposed date of
Borrowing in the case of a Eurodollar Rate Auction, or 8:00
A.M. (San Francisco time) on the proposed date of Borrowing in
the case of an Absolute Rate Auction, the Borrower shall
notify the Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to Section 2.2B(iv). The
Borrower shall be under no obligation to accept any offer and
may choose to reject all offers. Any offers not accepted by
the Borrower by such times shall be deemed rejected. In the
case of acceptance, the Borrower shall submit to the Agent a
Notice of Borrowing which shall specify the aggregate
principal amount of offers for each Interest Period that is
accepted. The Borrower may accept any Competitive Bid in
whole or in part; provided that:
(a) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth
in the related Competitive Bid Request;
(b) the principal amount of each Bid Borrowing
must be $2,000,000 or any integral multiple of $1,000,000
in excess thereof;
(c) acceptance of offers may only be made on
the basis of ascending Eurodollar Rate Bid Margins or
Absolute Rates within each Interest Period, as the case
may be; and
(d) the Borrower may not accept any offer
other than as is described in Section 2.2B(iii)(c) or
that otherwise fails to comply with the requirements of
this Agreement.
Each Notice of Borrowing with respect to a Bid Loan shall be
irrevocable and binding on the Borrower. The Borrower shall
indemnify each Bank against any loss, cost or expense incurred
by such Bank as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such
Bid Borrowing the applicable conditions set forth in Section
3, including, without limitation, any loss (including loss of
anticipated profits which loss shall be limited to the present
value of the difference between the interest rate payable on
the applicable Loan for the remainder of the applicable
Interest Period and the rate at which the Bank could redeploy
its funds for the remainder of the applicable Interest
Period), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Bank to fund the Bid Loan to be made by such Bank as a part of
such Borrowing when such Loan, as a result of such failure, is
not made on such date; provided, however, that such
indemnification shall not include any obligation with respect
to consequential damages. Any Bank failing to fund a Bid Loan
when it is required to do so hereunder shall indemnify the
Borrower against any monetary loss, cost or expense incurred
by the Borrower as a result thereof; provided, however, that
such indemnification shall not include any obligation with
respect to consequential damages.
(vi) If offers are made by two or more Banks with
the same Eurodollar Rate Bid Margins or 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 Bid Loans in
respect of which such offers are accepted shall be allocated
by the Agent, in the case of an Agent Auction, or the
Borrower, in the case of a Borrower Auction, among such Banks
as nearly as possible (in such multiples, not less than
$500,000, as the Agent, in the case of an Agent Auction, or
the Borrower, in the case of a Borrower Auction, may deem
appropriate) in proportion to the aggregate principal amounts
of such offers. Determination by the Agent, in the case of an
Agent Auction, or the Borrower, in the case of a Borrower
Auction, of the amounts of Bid Loans shall be conclusive in
the absence of manifest error.
(vii)(a) The Agent, in the case of an Agent
Auction, or the Borrower, in the case of a Borrower
Auction, will promptly notify each Bank having submitted
a Competitive Bid if its offer has been accepted and, if
its offer has been accepted, of the amount of the Bid
Loan or Bid Loans to be made by it on the date of the Bid
Borrowing.
(b) In the case of an Agent Auction, each
Bank, which has received notice pursuant to Section
2.2B(vii)(a) that its Competitive Bid has been accepted,
shall make the amounts of such Bid Loans available to the
Agent for the account of the Borrower by 10:00 A.M. (San
Francisco time), on such date of Bid Borrowing, by
depositing same day funds in the Agent's Account
No. 12330-15415, re: CalMat Co., Attention: Global Agency
#5596, maintained at BofA, Global Agency, ABA No. 1210-
0035-8-BKAMER-SF or in such other account as the Agent
may from time to time specify in writing to the Banks.
(c) In the case of a Borrower Auction, each
Bank, which has received notice pursuant to Section
2.2B(vii)(a) that its Competitive Bid has been accepted,
shall make the amounts of such Bid Loans available to the
Borrower by 10:00 A.M. (San Francisco time), on such date
of Bid Borrowing, by depositing same day funds in the
account designated by Borrower in its notice of
acceptance.
(d) Promptly following each Bid Borrowing, the
Agent shall notify each Bank and the Borrower, in the
case of an Agent Auction, or the Borrower shall notify
the Agent and each Bank, in the case of a Borrower
Auction, of the ranges of Competitive Bids submitted and
the highest and lowest Competitive Bids accepted for each
Interest Period requested by the Borrower and the
aggregate amount borrowed pursuant to such Bid Borrowing.
(e) From time to time, the Borrower and the
Banks shall promptly furnish such information to the
Agent as the Agent may request relating to the making of
Bid Loans, including, without limitation, the amounts,
interest rates, dates of borrowings and maturities
thereof, for purposes of the allocation of amounts
received from the Borrower for payment of all amounts
owing hereunder.
(viii)If, on or prior to the proposed date and time
of Borrowing, the Commitments have not been terminated and if,
on such proposed date of Borrowing all applicable conditions
to funding referenced in Section 3.1 and Section 3.2 hereof
are satisfied, the Bank or Banks whose offers the Borrower has
accepted will fund each Bid Loan so accepted. Nothing in this
Section 2.2 shall be construed as a right of first offer in
favor of the Banks or to otherwise limit the ability of the
Borrower to request and accept credit facilities from any
Person (including any of the Banks), provided that no
Potential Event of Default or Event of Default would otherwise
arise or exist as a result of the Borrower executing,
delivering or performing under such credit facilities.
(ix) Each outstanding Bid Loan shall reduce pro
tanto the availability of the aggregate Commitments, and shall
reduce the availability of each Bank's (including the Bid Loan
Bank's) Commitment on a pro rata basis.
2.3 Fees
A. Facility Fee. The Borrower agrees to pay to the
Agent for the ratable benefit of the Banks a facility fee on the
average daily Commitments (regardless of usage) from the
Effective Date to but not including the Maturity Date in an
amount equal to the Applicable Amount for the Facility Fee. Such
facility fee shall be payable on the first Business Day of each
fiscal quarter of the Borrower in arrears for the immediately
preceding fiscal quarter of the Borrower (or portion thereof),
and on the Maturity Date.
B. Arranger, Agent's Fees. The Borrower agrees to pay
to the Arranger and the Agent, for their own respective accounts,
such fees as may be agreed upon in the amounts and at the times
agreed upon.
2.4 Reductions of Commitments; Extension of Commitments
A. Voluntary Reductions of Commitments. The Borrower
shall have the right, at any time and from time to time, to
terminate in whole or permanently reduce ratably in part, without
premium or penalty, the unused portions of the Commitments, by
giving not less than three (3) Business Days' prior written
notice to the Agent or telephonic notice, followed immediately by
telecopied delivery and promptly confirmed in writing, delivered
by mail, designating that the Commitments are to be reduced, the
date (which shall be a Business Day) of any such termination or
reduction and the amount of any partial reduction. Such
termination or partial reduction of the Commitments shall be
effective on the date specified in such notice and shall reduce
the respective Commitment of each Bank proportionately to its Pro
Rata Share. Any such partial reduction of the Commitments shall
be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
B. Maturity Date. The Commitments shall be reduced to
zero on the Maturity Date.
C. Extension of Commitments. On or before the date
that is sixty (60) days prior to the first anniversary of the
Effective Date and on or prior to the date that is sixty (60)
days prior to the second anniversary of the Effective Date, the
Borrower may request that the Banks extend the availability of
the Commitments for a one (1) year period; provided, that the
aggregate extensions requested pursuant to this Section 2.4C
shall not exceed two (2) years. The Agent shall promptly notify
the Banks of such a request. On or before the first or second
anniversary of the Effective Date, as applicable, the Banks shall
have the right, in their sole discretion, to consent to the
extension of the Commitments on terms and conditions satisfactory
to the Banks or to reject such extension request. If any Bank
rejects the extension of the Commitments, the Commitments shall
terminate on the then scheduled Maturity Date and all Loans shall
be repaid in accordance with the terms of this Agreement. If the
Agent has not responded in writing to the Borrower by the first
or second anniversary of the Effective Date, as applicable, the
Banks shall be deemed to have rejected the extension of the
Commitments.
If the Banks consent to the extension of the Commitments
for a one-year period, the Maturity Date shall be automatically
extended by such one-year period without any further action by
the Borrower, the Agent or the Banks and the Borrower shall
execute such documents, agreements and instruments, and perform
such acts as the Agent may request, to effect such extension.
2.5 Optional Prepayments and Mandatory Payments and
Prepayments
A. Optional Prepayments. The Borrower may, upon notice
to the Agent stating the Type of the Loans to be prepaid and the
Borrowing of which such Loans were a part, and the proposed date
and aggregate principal amount of the prepayment (provided that
such notice shall be given not later than 10:00 A.M. (San
Francisco time) at least (i) one (1) Business Day prior to the
proposed date of such prepayment in the case of Base Rate Loans,
and (ii) five (5) Business Days prior to the proposed date of
such prepayment in the case of CD Rate Loans and Eurodollar Rate
Loans, and if such notice is given, the Borrower shall, prepay
without premium or penalty the outstanding principal amounts of
the Loans of the Type specified comprising part of the same
Borrowing in whole or ratably in part; provided that any
voluntary prepayment of any CD Rate Loans or Eurodollar Rate
Loans shall be made on, and only on, the last day of an Interest
Period for such Loans; provided, further, that no Bid Loans may
be prepaid without the express written consent of the applicable
Bid Loan Bank, with a copy of such consent provided to the Agent,
and provided, further, that each partial prepayment of CD Rate
Loans or Eurodollar Loans shall be in an aggregate principal
amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and each partial prepayment of Base
Rate Loans shall be in an aggregate principal amount not less
than $250,000 or multiples thereof. Notice of prepayment having
been given as aforesaid, the principal amount of the Loans
specified in such notice and, in the case of any prepayment of CD
Rate Loans or Eurodollar Rate Loans, all interest accrued thereon
through the date of prepayment, shall become due and payable on
the prepayment date.
B. Mandatory Payments and Prepayments.
(i) Repayment of Loans. The Borrower shall repay
to the Agent the principal amount of each Committed Loan owing
to each Bank for the account of each Bank and all other
amounts owing hereunder with respect to the Commitments on the
Maturity Date for the account of each Bank. The Borrower
shall repay to the Agent for the account of each Bid Loan Bank
(in the case of a Bid Loan made through an Agent Auction) or
to the Bid Loan Bank (in the case of a Bid Loan made through a
Borrower Auction) the principal amount of each Bid Loan on the
last day of the Interest Period applicable thereto.
(ii) Prepayment of Loans When Loans Exceed
Commitments. If at any time the aggregate principal amount of
the Loans outstanding exceeds the aggregate Commitments then
in effect, the Borrower shall, if notified (by telephone,
writing or otherwise) of such excess by 10:00 A.M. (San
Francisco time) on any day, prepay the Loans on the date of
such notification in an amount equal to the applicable excess
and, if notified (by telephone, writing or otherwise) of such
excess later than 10:00 A.M. (San Francisco time) on any day,
prepay the Loans on the first Business Day immediately
succeeding the date of such notification in an amount equal to
the applicable excess.
C. Application of Prepayments.
(i) Application by Type of Loan. Any mandatory
prepayment shall be applied (a) first, pro rata to Base Rate
Loans to the full extent thereof, (b) second, pro rata to CD
Rate Loans and Eurodollar Rate Loans to the full extent
thereof and (c) third, pro rata to outstanding Bid Loans.
(ii) Application to Principal and Interest of Loans.
All prepayments of CD Rate Loans and Eurodollar Rate Loans
shall include payment of accrued interest on the principal
amount so prepaid and shall be applied to payment of interest
before application to principal.
2.6 Interest
The Borrower shall pay interest on the unpaid principal
amount of each Loan (including any Bid Loan) made by each Bank
from the date each such Loan is funded until such principal
amount shall be paid in full, at the applicable rate set forth
below:
A. Base Rate Loans. Subject to the provisions of
Section 2.6E, during such periods as such Loan is a Base Rate
Loan, at a rate per annum equal at all times to the Base Rate
in effect from time to time, payable in arrears on the first
Business Day of each fiscal quarter of the Borrower for the
immediately preceding fiscal quarter of the Borrower during
such periods and on the Maturity Date.
B. CD Rate Loans. Subject to the provisions of
Section 2.6E, during such periods as such Loan is a CD Rate
Loan, at a rate per annum equal at all times during each
Interest Period for such Loan to the Adjusted CD Rate for such
Interest Period plus the Applicable Amount for the Adjusted CD
Rate, payable in arrears on the last day of such Interest
Period and, in the case of each Interest Period of 180 days,
on each 90-day anniversary of the commencement of such
Interest Period, and on each date such Loan shall be paid or
due and payable in full or in part (with respect to the
portion paid in part).
C. Eurodollar Rate Loans. Subject to the
provisions of Section 2.6E, during such periods as such Loan
is a Eurodollar Rate Loan, at a rate per annum equal at all
times during each Interest Period for such Loan to the
Adjusted Eurodollar Rate for such Interest Period plus the
Applicable Amount for the Adjusted Eurodollar Rate, payable in
arrears on the last day of such Interest Period and, in the
case of each Interest Period of six months, on each three-
month anniversary of the commencement of such Interest Period,
and on each date such Loan shall be paid or due and payable in
full or in part (with respect to the portion paid in part).
D. Bid Loans. Subject to the provisions of
Section 2.6E, for Bid Loans, at a rate per annum equal at all
times to that offered by the applicable Bid Loan Bank and
accepted by the Borrower pursuant to Section 2.2, payable in
arrears in accordance with the terms of such Bid Loan.
E. Default Rate. After the occurrence and during
the continuation of any Event of Default or Potential Event of
Default, to the extent permitted by applicable law, the Loans
shall bear interest, payable on demand, at a rate per annum
equal at all times to 2.00% per annum above the rate of
interest otherwise payable under this Agreement; provided,
that upon the cure or waiver of such Event of Default or
Potential Event of Default, the applicable interest rate shall
revert to the rate otherwise payable under this Agreement.
If an Event of Default or Potential Event of Default
occurs and is continuing, none of the Loans made pursuant to
Sections 2.1 or 2.2 shall constitute a CD Rate Loan,
Eurodollar Rate Loan or Bid Loan (or shall bear interest at
the rate provided in Section 2.2B, 2.6B, 2.6C or 2.6D) and
with respect to an outstanding CD Rate Loan, Eurodollar Rate
Loan or Bid Loan, at the end of the Interest Period in effect
at the time of such Event of Default or Potential Event of
Default, such Loan shall constitute a Base Rate Loan and shall
bear interest at a rate which is 2.00% per annum above the
rate otherwise payable on Base Rate Loans.
2.7 Interest Rate Determination and Protection
A. The Agent shall give prompt notice to the Borrower
and the Banks of the applicable interest rate determined by the
Agent for Committed Loans for purposes of Section 2.6; provided,
that any failure to do so shall not relieve the Borrower of any
liability hereunder. Any change in the interest rate on a Loan
resulting from a change in the Eurodollar Rate Reserve
Percentage, CD Rate Reserve Percentage, CD Assessment Rate or
Base Rate shall become effective as of the opening of business on
the day on which such change in the Eurodollar Rate Reserve
Percentage, CD Rate Reserve Percentage, CD Assessment Rate or
Base Rate becomes effective.
B. If, with respect to any CD Rate Loans or Eurodollar
Rate Loans, any Bank notifies (and provides a certificate in
reasonable detail as to the reasons and amounts relating thereto)
the Agent that, as a result of circumstances affecting the
domestic certificate of deposit market or the Eurodollar markets,
as the case may be, the Adjusted CD Rate or the Adjusted
Eurodollar Rate for any Interest Period for such Loans will not
adequately reflect the cost to such Bank of making, funding or
maintaining its CD Rate Loans or Eurodollar Rate Loans for such
Interest Period, the Agent shall forthwith so notify the Borrower
and the Banks, whereupon:
(i) the Borrower shall from time to time, upon
demand of such Bank, pay to the Agent for the account of such
Bank all amounts payable under Section 2.10A and 2.10B,
(ii) each such Loan by such Bank will automatically,
on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Loan (or, if such Loan is then a Base
Rate Loan, will continue as a Base Rate Loan), and
(iii)the obligations of such Bank to make, or to
Convert Loans into, CD Rate Loans or Eurodollar Rate Loans, as
the case may be, shall be suspended until the Agent shall
notify the Borrower that the circumstances causing such
suspension by such Bank no longer exist (and such Bank shall
make all of its Loans as Base Rate Loans notwithstanding any
election by the Borrower to have the Banks make, or to Convert
any Loans into, CD Rate Loans or Eurodollar Rate Loans, as the
case may be).
C. If the Borrower shall fail timely to select the
duration of any Interest Period for any CD Rate Loan or
Eurodollar Rate Loan in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.1, the Agent
will forthwith so notify the Borrower and the Banks and such
Loans will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Loans.
2.8 Illegality and Eurodollar Rate Loans
Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank
or other governmental authority shall assert that it is unlawful,
for any Bank or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Loans or to
continue to fund or maintain Eurodollar Rate Loans hereunder (any
such introduction, change or assertion being an "Event of
Illegality"), then, on notice thereof (which notice shall specify
the basis therefor) and demand therefor by such Bank to the
Borrower through the Agent, (i) the obligation of such Bank to
make Eurodollar Rate Loans and to Convert Base Rate Loans or CD
Rate Loans into Eurodollar Rate Loans shall terminate (and such
Bank shall make all of its Loans as Base Rate Loans or CD Rate
Loans notwithstanding any election by the Borrower to have the
Banks make, or to Convert any Loans into, Eurodollar Rate Loans)
and (ii) the Borrower shall within five Business Days of such
notice and demand, Convert all Eurodollar Rate Loans of such Bank
then outstanding into Base Rate Loans or CD Rate Loans in
accordance with Section 2.9; provided that, before making any
such demand, such Bank agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Bank or its
Eurodollar Lending office to continue to perform its obligations
to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans and would not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank; provided,
further, that if at any time after such Conversion no such Event
of Illegality shall be continuing, such Bank shall promptly so
notify the Agent and the Borrower, and the obligation of such
Bank to make Eurodollar Rate Loans shall be reinstated; and
provided, further, that neither the Agent nor such Bank shall
have any liability for the manner or timeliness of such notice.
2.9 Voluntary Conversion or Continuation of Loans
The Borrower may, subject to the definition of the term
Interest Period and the provisions of Sections 2.7 and 2.8,
(i) Convert all or any portion of Loans (other than Bid Loans) of
one Type into Loans (other than Bid Loans) of another Type and
(ii) upon the expiration of any Interest Period applicable to a
CD Rate Loan or Eurodollar Rate Loan, as the case may be,
continue all or any portion of such Loan as a CD Rate Loan or
Eurodollar Rate Loan, as the case may be; provided that any such
Conversion of any CD Rate Loan or Eurodollar Rate Loan into Loans
of another Type shall be made on, and only on, the last day of an
Interest Period for such CD Rate Loan or Eurodollar Rate Loan,
and any such Conversion of Loans into CD Rate Loans or Eurodollar
Rate Loans, or continuation of CD Rate Loans or Eurodollar Rate
Loans, as applicable, shall (a) be in an amount not less than the
minimum amount specified in Section 2.1 for a Borrowing of the
relevant Type and (b) not be made if an Event of Default or
Potential Event of Default has occurred and is continuing.
The Borrower shall deliver a Notice of Conversion/
Continuation (executed by the Borrower) to the Agent no later
than 9:00 A.M. (San Francisco time) (i) at least two (2) Business
Days in advance of the proposed conversion/continuation date (in
the case of a Conversion to, or a continuation of, a CD Rate
Loan), (ii) at least three (3) Business Days in advance of the
proposed conversion/continuation date (in the case of a
Conversion to, or a continuation of, a Eurodollar Rate Loan) and
(iii) on the Business Day of the proposed conversion/continuation
date (in the case of a Conversion to a Base Rate Loan). A Notice
of Conversion/Continuation shall certify (i) the proposed
conversion/continuation date (which shall be a Business Day),
(ii) the Type and amount of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in
the case of a Conversion to, or a continuation of, a CD Rate Loan
or a Eurodollar Rate Loan, the requested Interest Period, and
(v) that no Potential Event of Default or Event of Default has
occurred and is continuing or would result from the proposed
conversion/continuation. In lieu of delivering the above
described Notice of Conversion/Continuation, the Borrower may
give the Agent telephonic notice (immediately confirmed by
telecopied delivery of the Notice of Conversion/Continuation) by
the required time of any proposed conversion/continuation under
this Section 2.9.
Neither the Agent nor any Bank shall incur any liability
to the Borrower or any other Bank in acting upon any telephonic
notice referred to above that the Agent believes in good faith to
have been given by a duly authorized officer or other Person
authorized to borrow on behalf of the Borrower or for otherwise
acting in good faith under this Section 2.9 and upon conversion/
continuation by the Agent in accordance with this Agreement
pursuant to any telephonic notice, the Borrower shall have
effected the conversion/continuation of Loans hereunder.
A Notice of Conversion/Continuation for Conversion to, or
continuation of, a CD Rate Loan or a Eurodollar Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable on and
after such notice is given and the Borrower shall be bound to
Convert or continue in accordance therewith.
After the occurrence of and during the continuance of a
Potential Event of Default or Event of Default, the Borrower may
not elect to have a Loan made or continued as, or Converted to, a
CD Rate Loan or a Eurodollar Rate Loan, in each case after the
expiration of any Interest Period then in effect for that Loan.
2.10 Increased Costs and Funding Losses; Substitution of
a Bank
A. If, due to either (i) the introduction of or any
change after the date hereof (other than any change by way of
imposition or increase of reserve requirements, in the case of CD
Rate Loans, included in the CD Rate Reserve Percentage, or in the
case of Eurodollar Rate Loans, included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request
issued or made after the date hereof from any central bank, or
other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to any Bank of
agreeing to make or making, funding or maintaining CD Rate Loans
or Eurodollar Rate Loans under this Agreement, then the Borrower
shall from time to time, upon demand by such Bank (with a copy of
such demand to the Agent), pay to the Agent for the account of
such Bank additional amounts sufficient to compensate such Bank
for such increased cost; provided, however, that the Borrower's
obligation to pay such Bank shall be limited to the increased
cost that is reasonably allocable to this Agreement and
attributable to the period commencing nine (9) months prior to
the date such Bank gives notice to the Borrower of the event
entitling such Bank to compensation. A certificate signed by an
officer of such Bank specifying in reasonable detail the amount
of such increased cost, the calculation thereof and the basis
therefor submitted to the Borrower by such Bank, shall be
conclusive and binding for all purposes, absent manifest error.
B. If any Bank determines that compliance with any law
or regulation or with any guideline or request issued or made
from any central bank or governmental authority (whether or not
having the force of law) has or would have the effect of reducing
the rate of return on the capital of such Bank or any corporation
controlling such Bank as a consequence of, or with reference to,
such Bank's Commitment to lend hereunder and other commitments of
this type below the rate which such Bank or such other
corporation could have achieved but for such compliance (taking
into account the policies of such Bank or corporation with regard
to capital) then, upon demand by such Bank (with a copy of such
demand to the Agent), the Borrower shall immediately pay to the
Agent for the account of such Bank, from time to time as
specified by such Bank, additional amounts sufficient to
compensate such Bank or other corporation for such reduction that
are reasonably allocable to this Agreement. A certificate signed
by an officer of such Bank specifying in reasonable detail the
amounts, the calculation of such amounts and the basis therefor
submitted to the Borrower by such Bank shall be conclusive and
binding for all purposes, absent manifest error.
C. The Borrower shall compensate each Bank, upon
written request by that Bank, with a copy to the Agent, (which
request shall set forth in reasonable detail the basis for
requesting such amounts), for all losses, expenses and
liabilities (including, without limitation, any loss or expense
arising from interest or fees paid or payable by that Bank to
lenders of funds borrowed by it to make or carry its CD Rate
Loans or Eurodollar Rate Loans and any loss sustained by that
Bank in connection with the re-employment of such funds), that
such Bank may sustain: (i) if for any reason (other than a
default or error by that Bank) a borrowing of any CD Rate Loan or
Eurodollar Rate Loan does not occur on a date specified therefor
in a Notice of Borrowing, a Notice of Conversion/Continuation or
a telephonic request for borrowing or conversion/continuation or
a successive Interest Period does not commence after notice
therefor is given pursuant to Section 2.9, (ii) if any payment or
prepayment (by acceleration of maturity, mandatory prepayments or
otherwise) of any of its CD Rate Loans or Eurodollar Rate Loans
occurs on a date that is not the last day of an Interest Period
applicable to that Loan, or (iii) if any payment or prepayment
(by acceleration of maturity, mandatory prepayments or otherwise)
of any of its CD Rate Loans or Eurodollar Rate Loans is not made
on any date specified in a notice of prepayment given by the
Borrower. Such written determination of such amount by such Bank
shall be conclusive and binding in all matters in the absence of
manifest error.
D. In the event the Borrower receives notice of demand
or is otherwise required under the provisions of Section 2.10A to
make payments in a material amount to any Bank, and the event
giving rise to such payment continues for ninety (90) days, the
Borrower may, within thirty (30) days after the end of the
applicable ninety (90) day period and so long as no Event of
Default or Potential Event of Default shall have occurred and be
continuing, elect to terminate such Bank as a party to this
Agreement; provided that, concurrently with such termination the
Borrower shall (i) pay that Bank all principal, interest and fees
and other amounts (including amounts, if any, owed under this
Section 2.10) owed to such Bank through such date of termination,
(ii) have arranged for an Eligible Assignee satisfactory to the
Agent to become a Bank for all purposes under this Agreement
(whether by assignment or amendment) and to assume as of such
date all obligations of the Bank to be terminated as of such date
and (iii) all documents and supporting materials necessary to
evidence the substitution of such Bank shall have been received
by the Agent as of such date.
2.11 Taxes
A. Any and all payments by the Borrower hereunder shall
be made, in accordance with Section 2.12, free and clear of and
without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Bank 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 taxes imposed on it,
by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes,
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 to any Bank or the Agent,
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.11)
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 and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law; provided that the Borrower shall not be required
pursuant to clause (i) above to increase the sum payable to any
Bank or the Agent organized under the laws of a jurisdiction
outside of the United States if such Bank or the Agent shall have
failed to provide the forms or documents referred to in Section
2.11E; provided, further, that to the extent a Bank receives a
refund of taxes in respect of which the Borrower has made a
payment to such Bank pursuant to clause (i) above, such Bank will
refund such payment to the Borrower.
B. In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
C. The Borrower will indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.11) 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, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
made within thirty days from the date such Bank or the Agent (as
the case may be) makes written demand therefor. Each Bank and
the Agent agrees to reimburse the Borrower for amounts paid by
the Borrower pursuant to this Section 2.11 to the extent that
such Bank or the Agent actually recovers all or any portion of
such amounts from the applicable taxing authority.
D. Within sixty (60) days after the date of any payment
of Taxes, the Borrower will furnish to the Agent, at its address
referred to in Section 9.2, the original or a certified copy of a
receipt evidencing payment thereof or other evidence of the
payment thereof satisfactory to the Agent.
E. Each Bank organized under the laws of a jurisdiction
outside the United States shall provide, prior to the date of the
initial Borrowing in the case of each Bank listed on the
signature pages hereof, and on the date of the Assignment and
Acceptance pursuant to which it became a Bank in the case of each
other Bank, the Agent and the Borrower with the forms prescribed
by the Internal Revenue Service of the United States certifying
as to such Bank's status for purposes of determining exemption
from United States withholding taxes with respect to all payments
to be made to such Bank hereunder or other documents satisfactory
to the Borrower and the Agent indicating that all payments to be
made to such Bank hereunder are subject to such taxes at a rate
reduced by an applicable tax treaty. Unless the Borrower and the
Agent have received forms or other documents satisfactory to them
indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Borrower or the Agent
shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Bank
organized under the laws of a jurisdiction outside the United
States.
2.12 Payments and Computations
A. Manner and Time of Payment. The Borrower shall make
each payment hereunder irrespective of and without condition or
deduction for any counterclaim, defense, recoupment or setoff in
Dollars and in same day funds not later than 12:00 Noon (San
Francisco time) on the date when due (i) in the case of payments
of principal of, or interest on, each Bid Loan made through a
Borrower Auction, to the applicable Bid Loan Bank, or (ii) for
all other payments, by deposit of such funds to the Agent's
Account No. 12330-15415, re: CalMat Co., Attention: Global
Agency #5596, maintained at BofA, Global Agency, ABA No. 1210-
0035-8-BKAMER-SF, or at such other account as the Agent may from
time to time designate by notice to the Borrower. Any payment
which is received by the Agent or a Bid Loan Bank later than
12:00 Noon (San Francisco time) shall be deemed to have been
received on the immediately succeeding Business Day. The Agent
will promptly thereafter cause to be distributed like funds
relating to Committed Loans ratably (other than amounts payable
pursuant to Sections 2.10 or 2.11) to the Banks for the account
of their respective Applicable Lending Offices, and the payment
of any other amount payable to any Bank (other than with respect
to Bid Loans) to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the
terms of this Agreement. In the case of each Bid Loan made
through an Agent Auction, the Agent will cause an amount of same
day funds equal to the amount of such payments of principal of,
or interest on, each such Bid Loan on which the Borrower makes a
payment to be available to the applicable Bid Loan Bank at the
office of such Bank designated by such Bank. In the case of each
Bid Loan made through a Borrower Auction, the applicable Bid Loan
Bank shall notify the Borrower of the payment instructions
relating to such Bid Loan promptly after the funding thereof, and
the Borrower will make payments in same day funds equal to the
amount of principal of, or interest on, on each such Bid Loan
when due in accordance with such payment instructions. The
Borrower may not prepay any Bid Loan without the consent of the
Bank which made the Bid Loan. Upon its acceptance of an
Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.7D, the
Agent shall make all payments hereunder in respect of the
interest assigned thereby to the Bank assignee thereunder, and
the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
B. Computations. All computations of interest and
facility fees shall be made by the Agent, and all computations of
interest pursuant to Section 2.10 shall be made by a Bank, on the
basis of a year of (i) 365 or 366 days in the case of calculation
of interest on Base Rate Loans and fees and (ii) 360 days in all
other cases, in each case for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest or facility fees are payable;
provided that if a Loan is repaid on the same day on which it is
made, one day's interest shall be paid on that Loan. Each
determination by the Agent (or, in the case of Section 2.7, by a
Bank) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
C. Payment on Non-Business Days. Whenever any payment
hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility
fee, as the case may be; provided that if such extension would
cause payment of interest on or principal of Eurodollar Rate
Loans or Eurodollar Rate Bid Loans to be made in the next
following calendar month, such payment shall be made on the next
preceding Business Day.
2.13 Sharing of Payments, Etc.
If any Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans owing to it (other than
payments on account of Bid Loans which are received on a date
during which no Event of Default or Potential Event of Default
has occurred and is continuing and other than payments pursuant
to Section 2.10 or 2.11) in excess of its ratable share of
payments on account of the Loans obtained by all the Banks, such
Bank shall forthwith purchase from the other Banks such
participations in the Loans owing to them as shall be necessary
to cause such purchasing Bank to share the excess payment ratably
with each of them; provided that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank,
such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the
extent of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the
amount of such Bank's required repayment to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Borrower agrees that any Bank so
purchasing a participation from another Bank pursuant to this
Section 2.13 or any other provision of this Agreement may, to the
fullest extent permitted by law, exercise all of its rights of
payment (including the right to set-off) with respect to such
participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation.
2.14 Use of Proceeds
A. Loans. The proceeds of the Loans made by the Banks
shall be used for the general corporate purposes of the Borrower,
including, without limitation, working capital purposes and
capital expenditures. In addition, the proceeds of the first
Loan made hereunder shall be used by the Borrower to prepay any
banks that were party to the Original Agreement that are not a
party hereto.
B. Prohibited Uses. No portion of the proceeds of any
Borrowing under this Agreement shall be used by the Borrower to
finance acquisitions not approved by the Board of Directors of
the entity to be acquired or in any manner which might cause the
Borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T, or Regulation X of the
Board of Governors of the Federal Reserve System or any other
regulation of the Board or to violate the Exchange Act, in each
case as in effect on the date or dates of such Borrowing and such
use of proceeds.
C. Ineligible Securities. The Borrower shall not,
directly or indirectly, use any portion of the Loan proceeds (i)
knowingly to purchase Ineligible Securities from a Section 20
Subsidiary during any period in which such Section 20 Subsidiary
makes a market in such Ineligible Securities, (ii) knowingly to
purchase during the underwriting or placement period Ineligible
Securities being underwritten or privately placed by a Section 20
Subsidiary, or (iii) to make payments of principal or interest on
Ineligible Securities underwritten or privately placed by a
Section 20 Subsidiary and issued by or for the benefit of the
Borrower or any Affiliate of the Borrower. As used in this
Section, "Section 20 Subsidiary" means the Subsidiary of the bank
holding company controlling any Bank, which Subsidiary has been
granted authority by the Federal Reserve Board to underwrite and
deal in certain Ineligible Securities; and "Ineligible
Securities" means securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (as U.S.C. Section 24, Seventh),
as amended.
Section 3. CONDITIONS TO EFFECTIVENESS;
CONDITIONS WITH RESPECT TO LOANS
3.1 Conditions to Effectiveness
This Agreement shall become effective only upon the
satisfaction of the following conditions:
A. Delivery of the Borrower Documents. On or before
the Effective Date, the Borrower shall deliver the following to
the Agent for the Banks with sufficient originally executed
copies or certified copies for each Bank and its counsel each,
unless otherwise noted, dated the Effective Date:
(i) Certified copies of the Certificate of Incorporation
of the Borrower, together with good standing certificates
(including verification of tax status) and telegrams, if
available, from the Secretary of State of Delaware, and good
standing certificates (including verification of tax status)
from each State in which the Borrower is required to be
qualified to transact business as a foreign corporation, each
to be dated a recent date prior to the Effective Date and, in
the case of the Certificate of Incorporation, to be certified
as of the Effective Date by the Borrower's corporate secretary
or an assistant secretary;
(ii) Copies of the Borrower's Bylaws certified by its
corporate secretary or an assistant secretary;
(iii)Resolutions of the Borrower's Board of Directors
approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents and
any other documents, instruments and certificates required to
be executed by the Borrower in connection herewith or
therewith, each certified by its corporate secretary or an
assistant secretary;
(iv) Signature and incumbency certificates of the
Borrower's officers executing this Agreement and the other
Loan Documents and any other documents, instruments and
certificates required to be executed by the Borrower in
connection herewith or therewith;
(v) Executed copies of this Agreement, and the other
Loan Documents, if any, to which the Borrower is a party; and
(vi) Such other documents as the Agent may reasonably
request.
B. Fees. On or before the Effective Date, the Borrower
shall have paid to the Agent and Arranger the fees payable on or
prior to the Effective Date, together with Attorney Costs of BofA
to the extent invoiced prior to or on the Effective Date, plus
such additional amounts of Attorney Costs as shall constitute
BofA's reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of
accounts between the Borrower and BofA).
C. Delivery of Opinion of Counsel to the Borrower. On
the Effective Date, the Banks and their respective counsel shall
have received originally executed copies of one or more favorable
written opinions of Paul Stanford, Esq., General Counsel of the
Borrower, substantially in the form of Exhibit V annexed hereto.
D. Completion of Audit and Investigation. On or before
the Effective Date, the Banks shall have completed such
investigations, reviews of financial controls and reporting,
reviews of appraisals or summaries thereof, and audits of the
Borrower and its operations, assets, litigation (pending or
threatened) and loss contingencies, legal, regulatory and
environmental matters, insurance coverage and reserves, and other
matters as any Bank may deem appropriate, and these
investigations, reviews and audits shall have provided the Banks
with results and information which, in their sole opinion but in
good faith, are satisfactory to warrant the making of the initial
Loans.
E. Liens. The Agent shall have received evidence, in
form and substance satisfactory to the Agent and Requisite Banks
that (i) the property of the Borrower (including all of the
Borrower's real, personal and mixed property) is free and clear
of all Liens other than Liens permitted by Section 6.1 and (ii)
the Borrower has no agreement, contract or other obligation
(written or otherwise) to create or grant any Lien, other than a
Lien permitted by Section 6.1, in such property.
F. Paying Banks under Original Agreement. Concurrently
with the funding of the initial Loans hereunder, the Borrower
shall have terminated the commitments of, and shall have paid all
amounts owing to, any lenders party to the Original Agreement
that are not Banks hereunder.
G. Other Corporate Actions. On or before the Effective
Date, all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by
the Requisite Banks, and their counsel shall be reasonably
satisfactory in form and substance to the Requisite Banks and
such counsel, and the Requisite Banks and such counsel shall have
received all such counterpart originals or certified copies of
such documents as the Requisite Banks may reasonably request.
H. Consolidated Interest Coverage Ratio. On or before
the Effective Date, the Borrower shall have delivered to the
Agent a certificate showing, in the detail prescribed by
paragraph E of Attachment No. 1 to Exhibit IV annexed hereto, the
Consolidated Interest Coverage Ratio as of March 31, 1994.
I. Other Documents. On or before the Effective Date,
the Borrower shall have delivered to the Banks such other
documents as the Banks may reasonably request.
3.2 Conditions to All Loans
The obligation of each Bank to make each Loan is subject
to prior or concurrent fulfillment to such Bank's satisfaction of
the following conditions precedent in addition to those set forth
in Section 3.1:
A. Delivery of Notice. Prior to a Funding Date, the
Agent shall have received, in accordance with the provisions of
Section 2.1B, an originally executed Notice of Borrowing signed
by an Authorized Officer of the Borrower. The giving of such
Notice of Borrowing shall be deemed to be a representation by the
Borrower that all of the conditions to Borrowing set forth in
this Section 3.2 shall have been satisfied as of the date of such
Notice of Borrowing.
B. Other Requirements.
(i) The representations and warranties of the Borrower
contained herein shall be true, correct and complete in all
material respects on and as of each Funding Date to the same
extent as though made on and as of that date;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the Borrowing
contemplated by the applicable Notice of Borrowing that would
constitute an Event of Default or a Potential Event of
Default; and
(iii)The making of any Loan and the use of the proceeds
thereof, shall not violate Regulation U, Regulation G,
Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System, and the Agent shall on each Funding
Date have received from the Borrower such documents and
information as it may reasonably request relating to the
satisfaction of such conditions.
Section 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement
and to make the Loans, the Borrower represents and warrants to
the Banks that the following statements are true, correct and
complete.
4.1 Organization, Powers, Good Standing and Subsidiaries
A. Organization and Powers. Each of the Borrower and
its Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation and has all requisite corporate power and
authority to own and operate its properties and to carry on its
business as now conducted and proposed to be conducted. The
Borrower has all requisite corporate power and authority to enter
into this Agreement and each of the other Loan Documents and to
carry out the transactions contemplated hereby.
B. Good Standing. Each of the Borrower and its
Subsidiaries is in good standing wherever necessary to carry on
its present business and operations, except in jurisdictions
where the failure to be in good standing has not and will not
have a Material Adverse Effect.
C. Subsidiaries. All of the Subsidiaries of the
Borrower as of the Effective Date are identified on Schedule C
annexed hereto. Schedule C correctly sets forth as of the
Effective Date the ownership interest of the Borrower in each of
its Subsidiaries.
4.2 Authorization of Borrowing, etc.
A. Authorization. The execution, delivery and
performance by the Borrower of this Agreement and each of the
other Loan Documents are within the Borrower's corporate powers
and have been duly authorized by all necessary corporate action.
B. No Conflict. The execution, delivery and
performance by the Borrower of this Agreement and each of the
other Loan Documents, the application of the proceeds of the
Loans and the consummation of any other transactions contemplated
by this Agreement and each of the other Loan Documents do not and
will not (i) violate any provision of law applicable to the
Borrower, the Certificate or Articles of Incorporation or Bylaws
(or other charter documents) of, or any order, judgment or decree
of any court or other agency of government binding on, the
Borrower, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any
Contractual Obligation of the Borrower, (iii) result in or
require the creation or imposition of any Lien, charge or
encumbrance of any nature whatsoever upon any of the properties
or assets of the Borrower or (iv) require any approval of
stockholders or any approval or consent of any Person under any
Contractual Obligation of the Borrower.
C. Governmental Consents. The execution, delivery and
performance by the Borrower of this Agreement and each of the
other Loan Documents, and the application of the proceeds of the
Loans and the consummation of any other transactions contemplated
by this Agreement and each of the other Loan Documents do not and
will not require any registration with, consent or approval of,
or notice to, or other action with or by, any federal, state or
other governmental authority or regulatory body or other Person.
D. Binding Obligation. This Agreement and each of the
other Loan Documents is the legally valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance
with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally and subject to the
availability of equitable remedies.
4.3 Financial Condition
The Borrower has heretofore delivered to the Agent and
the Banks, at the Banks' request, a Consolidated balance sheet of
the Borrower and its Subsidiaries for the Borrower's fiscal
quarter ending March 31, 1994 and the related Consolidated
statements of income, retained earnings and cash flows for such
fiscal quarter. All such statements, and all future statements
delivered pursuant to Section 5.1 will, present fairly the
financial condition of the Borrower and its Subsidiaries as of
the date indicated and the results of their operations for the
fiscal quarter indicated in conformity with GAAP applied on a
basis consistent with prior years (except as otherwise stated
therein). The Borrower and its Subsidiaries have no material
Contingent Obligation, contingent liability or liability for
taxes, long term lease or unusual forward or long term
commitments, which is not reflected in the foregoing financial
statements or the notes thereto.
4.4 Changes, Etc.
Since December 31, 1993 there has been no change that has
caused or evidences, either in any case or in the aggregate, a
Material Adverse Effect.
4.5 Litigation; Adverse Facts
There is no action, suit, proceeding or arbitration
(whether or not purportedly on behalf of the Borrower) at law or
in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending against the
Borrower or any of its Subsidiaries or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of
its Subsidiaries or any property of the Borrower or any of its
Subsidiaries which is reasonably expected to result in a Material
Adverse Effect, and there is no basis known to the Borrower for
any such action, suit or proceeding. There is no action, suit,
proceeding or investigation pending or, to the best knowledge of
the Borrower, threatened against or affecting the Borrower which
questions the validity or the enforceability of this Agreement or
any of the other Loan Documents. None of the Borrower or any of
its Subsidiaries is (i) in violation of any applicable law in a
manner which has had or is reasonably expected to have a Material
Adverse Effect or (ii) subject to or in default with respect to
any final judgment, order, writ, injunction, decree, rule or
regulation of any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, in a manner which has had
or is reasonably expected to have a Material Adverse Effect.
4.6 Payment of Tax
All tax returns and reports of the Borrower and its
Subsidiaries required to be filed by the Borrower and its
Subsidiaries have been timely filed (after giving effect to any
extensions for filing obtained), and all taxes, assessments, fees
and other governmental charges upon the Borrower and its
Subsidiaries and their properties, assets, income and franchises
(if any) which are due and payable have been paid when due and
payable, except (i) to the extent contemplated by the proviso in
Section 5.3A hereof or (ii) to the extent that such taxes,
assessments, fees and other governmental charges or the failure
to pay the same would not have a Material Adverse Effect. The
Borrower knows of no proposed tax assessment against the Borrower
or any of its Subsidiaries that would be material to the
condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole.
4.7 Materially Adverse Agreements; Performance
A. Agreements. Neither the Borrower nor any of its
Subsidiaries is a party to or subject to any material agreement
or instrument or charter or other internal restriction materially
adversely affecting the business, properties, assets, operations
or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole.
B. Performance. Neither the Borrower nor any of its
Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual Obligations, and no condition
exists which, with the giving of notice or the lapse of time or
both, would constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if
any, would not have a Material Adverse Effect.
4.8 Governmental Regulation
Neither the Borrower nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act
or the Investment Company Act of 1940 or to any United States
federal or state statute or regulation limiting its ability to
incur Indebtedness for money borrowed or to become contingently
liable for the Indebtedness of another.
4.9 Securities Activities
Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying any Margin Stock.
4.10 Employee Benefit Plans
A. Each of the Borrower and each of its ERISA
Affiliates is in compliance in all material respects with any
applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect
to each Employee Benefit Plan and has performed all of its
obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred on or after January 1,
1992 or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of
the Internal Revenue Code or except as described on Schedule D
annexed hereto, no Employee Benefit Plan provides health or
welfare benefits (through the purchase of insurance or otherwise)
for any retired or former employee of Borrower or any of its
ERISA Affiliates.
D. As of the most recent valuation date for any Pension
Plan, the amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate
for all Pension Plans (excluding for purposes of such computation
any Pension Plans with respect to which assets exceed benefit
liabilities), does not exceed $5,000,000.
4.11 Patents, Trademarks and Licenses
The Borrower possesses all of the licenses, patents,
patent applications, copyrights, service marks, trademarks and
trade names necessary to continue to conduct its business as
heretofore conducted by it.
4.12 Title to Properties; Liens
The Borrower and its Subsidiaries have good, sufficient
and legal title to all of their properties and assets reflected
in the Consolidated balance sheet of the Borrower and its
Subsidiaries as of March 31, 1994 or in the most recent financial
statements delivered pursuant to Section 5.1, except for assets
acquired or disposed of since the date of such financial
statements. All such properties and assets are free and clear of
Liens, except as permitted under this Agreement.
4.13 Environmental Protection Except as disclosed on
Schedule F annexed hereto:
A. The operations of the Borrower and its Subsidiaries
comply in all material respects with all Hazardous Materials
Laws, except where such noncompliance would not reasonably be
expected to result in liability, together with any other
Environmental Liabilities and Costs of Borrower and its
Subsidiaries, in excess of $15,000,000 in the aggregate.
B. The Borrower and its Subsidiaries have obtained all
permits, licenses and approvals under all Hazardous Materials
Laws necessary for their respective operations, and all such
permits, licenses and approvals are in good standing and the
Borrower and its Subsidiaries are in compliance with all
material terms and conditions of such permits, licenses and
approvals, except where the lack of such permits, licenses and
approvals would not reasonably be expected to result in
liability, together with any other Environmental Liabilities
and Costs of Borrower and its Subsidiaries described in this
Section 4.13, in excess of $15,000,000 in the aggregate.
C. The Borrower and its Subsidiaries and all of their
present property or operations, and to the best of the
Borrower's knowledge without investigation, their past
property or operations, are not subject to any outstanding
written order from or agreement with any governmental
authority or other Person or to any judicial or docketed
administrative proceeding, respecting (i) any Hazardous
Materials Laws, (ii) any Remedial Action or (iii) any material
Environmental Liabilities and Costs, which order, agreement or
proceeding would reasonably be expected to result in
liability, together with any other Environmental Liabilities
and Costs of Borrower and its Subsidiaries described in this
Section 4.13, in excess of $15,000,000 in the aggregate.
D. None of the Borrower or any of its Subsidiaries owns
or operates an offsite hazardous waste treatment, storage or
disposal facility requiring a permit under the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.,
related regulations or any other state equivalent.
E. None of the Borrower or any of its Subsidiaries has
filed or should have filed any notice required under any
Hazardous Materials Laws reporting a Release into the
environment which Release has, or would reasonably be expected
to have, a Material Adverse Effect.
F. There is not now on or in any property of the
Borrower or any of its Subsidiaries to the best of the
borrower's knowledge without investigation:
(i) any underground storage tanks or surface
impoundments,
(ii) any Hazardous Materials, or
(iii) any polychlorinated biphenyls (PCBs) used in
electrical or other equipment owned or maintained by the
Borrower or any of its Subsidiaries,
the presence of which is reasonably expected to have a
Material Adverse Effect.
G. None of the Borrower or any of its Subsidiaries has
received in the past three years (i) any notice or claim to
the effect that it is or may be liable to any Person as a
result of a Release or threatened Release which Release or
threatened Release is reasonably expected to have a Material
Adverse Effect, or (ii) any mandatory request for information
under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act or comparable State laws.
H. To the best of the Borrower's knowledge without
investigation, no material Environmental Lien (whether
recorded or unrecorded) has attached to any real or personal
property currently owned, used or operated by the Borrower or
any of its Subsidiaries.
4.14 Labor Matters
There are no strikes or other labor disputes or
grievances pending or, to the knowledge of the Borrower,
threatened against the Borrower or its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
4.15 Disclosure
As of the Effective Date and as of any date thereafter on
which representations and warranties are made, no representation
or warranty of the Borrower contained in this Agreement, any
other Loan Document or any other document, certificate or written
statement furnished to the Agent, the Banks, or any of them, by
or on behalf of the Borrower for use in connection with the
transactions contemplated by this Agreement and each of the other
Loan Documents, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact
(known to the Borrower in the case of any document not furnished
by it) necessary in order to make the statements contained herein
or therein not misleading. The projections and pro forma
financial information contained in such materials are based upon
good faith estimates and assumptions believed by such Persons to
be reasonable at the time made, it being recognized by the Banks
that such projections as to future events are not to be viewed as
facts or guarantees and that actual results during the period or
periods covered by any such projections may differ from the
projected results.
Section 5. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as any
portion of the aggregate Commitments hereunder shall be in effect
and until payment in full of all of the Loans, and all other
amounts owing hereunder, unless Requisite Banks shall otherwise
give prior written consent in accordance with Section 9.1 of this
Agreement, the Borrower shall perform all covenants in this
Section 5.
5.1 Financial Statements and Other Reports
The Borrower will maintain a system of accounting
established and administered in accordance with sound business
practices to permit preparation of financial statements in
conformity with GAAP applied on a consistent basis. The Borrower
will deliver to the Agent and the Banks:
(i) as soon as practicable and in any event within
fifty (50) days after the end of each of the first three
fiscal quarters in each fiscal year of the Borrower, a copy of
the Borrower's Quarterly Report on Form 10-Q which includes
the Consolidated balance sheet of the Borrower as at the end
of such period and the related Consolidated statements of
income and retained earnings of the Borrower for such fiscal
quarter and the related statement of cash flow for the period
from the beginning of the then current fiscal year to the end
of such fiscal quarter, setting forth in comparative form the
corresponding figures for the corresponding periods of the
previous fiscal year;
(ii) as soon as practicable and in any event within
one hundred (100) days after the end of each fiscal year of
the Borrower, a copy of the Borrower's Annual Report on Form
10-K and Annual Report to Stockholders which include (a) the
Consolidated balance sheet of the Borrower as at the end of
such fiscal year and the related Consolidated statements of
income, retained earnings and cash flow of the Borrower for
such fiscal year, setting forth in comparative form the
corresponding figures from the audited financial statements
from the previous Fiscal Year, and (b) in the case of such
Consolidated financial statements, accompanied by a report
thereon of an independent certified public accountant of
recognized national standing selected by the Borrower, which
report shall be unqualified as to going concern and scope of
audit and shall state that such Consolidated financial
statements present fairly the financial position of the
Borrower and its Subsidiaries as at the dates indicated and
the results of their operations and changes in their financial
position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except as
otherwise stated therein) and that the examination by such
accountants in connection with such Consolidated financial
statements has been made in accordance with generally accepted
auditing standards;
(iii)together with each delivery of financial
statements of the Borrower and its Subsidiaries pursuant to
subsections (i) and (ii) above, a Compliance Certificate,
substantially in the form of Exhibit IV annexed hereto and
demonstrating in reasonable detail compliance by the Borrower
at the end of such accounting periods with the restrictions
contained in Sections 6.1 through 6.6, inclusive, and, if not
specified in the financial statements delivered pursuant to
subdivision (i) or (ii) above, as the case may be, specifying
the aggregate amount of interest paid or accrued by the
Borrower and its Subsidiaries, and the aggregate amount of
depreciation, depletion and amortization charged on the books
of the Borrower and its Subsidiaries during such accounting
period and, with respect to the Compliance Certificate
delivered together with the financial statements pursuant to
subsection (ii) above, which will confirm that the independent
certified public accountants who have reported on the
Borrower's Consolidated financial statements have reviewed the
financial matters covered by the Compliance Certificate;
(iv) promptly upon their becoming available, copies
of (a) all reports, notices and proxy statements sent or made
available generally by any of the Borrower and its
Subsidiaries to their security holders, (b) all regular and
periodic reports and all registration statements and
prospectuses, if any, filed by any of the Borrower and its
Subsidiaries with any securities exchange or with the SEC or
any governmental or private regulatory authority and (c) all
press releases and other statements regarding management or
financial matters made available generally by any of the
Borrower and its Subsidiaries to the public concerning
material developments in the business of the Borrower;
(v) promptly upon any officer of the Borrower
obtaining knowledge (a) that a condition or event has occurred
and is continuing that constitutes an Event of Default or
Potential Event of Default, or becoming aware that any Bank or
the Agent has given any notice or taken any other action with
respect to a claimed Event of Default or Potential Event of
Default under this Agreement, (b) that any Person has given
any notice to the Borrower or any of its Subsidiaries or taken
any other action with respect to a claimed default or event or
condition of the type referred to in Section 7.4, or (c) of a
material adverse change in the business, operations,
properties, assets or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole, an
Officers' Certificate specifying the nature and period of
existence of such condition or event, or specifying the notice
given or action taken by such holder or Person and the nature
of such claimed default, Event of Default, Potential Event of
Default, event or condition, and what action the Borrower has
taken, is taking and proposes to take with respect thereto;
(vi) promptly upon any officer of the Borrower
obtaining knowledge of (a) the institution of, or nonfrivolous
threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower
or any of its Subsidiaries or any property of the Borrower or
any of its Subsidiaries not previously disclosed by the
Borrower to the Banks, or (b) any material development in any
such action, suit, proceeding, governmental investigation or
arbitration, that, in either case:
(y) creates a reasonable possibility of a Material
Adverse Effect; or
(z) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages in excess of
$1,000,000 or obtain relief as a result of, the Loans;
the Borrower shall promptly give notice thereof to the Agent and
the Banks and provide such other information as may be reasonably
available to it to enable the Agent, the Banks and their
respective counsel to evaluate such matters;
(vii)promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written
notice specifying the nature thereof, what action the Borrower
or any of its ERISA Affiliates has taken, is taking or
proposes to take with respect thereto, and, when known, any
action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto;
(viii) with reasonable promptness after a
reasonable request by the Agent, copies of (a) each Schedule B
(Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower or any of its ERISA Affiliates
with the Internal Revenue Service with respect to each Pension
Plan; (b) all notices received by the Borrower or any of its
ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (c) copies of such other documents or
governmental reports or filings relating to any Employee
Benefit Plan as the Agent shall reasonably request;
(ix) as soon as practicable and in any event within
one-hundred (100) days after the beginning of each fiscal
year, a Consolidated long range plan which includes a
financial forecast for the Borrower and its Subsidiaries for
the then current fiscal year and each subsequent fiscal year
through the end of the fiscal year which contains the then
scheduled Maturity Date, including, without limitation, a
forecasted Consolidated balance sheet and Consolidated
statements of income and cash flow for each such fiscal year,
each such plan and forecast to be in form similar to the plans
and forecasts delivered to the Agent prior to the Effective
Date; and
(x) with reasonable promptness, such other
information and data with respect to any of the Borrower and
its Subsidiaries as from time to time may be reasonably
requested by the Agent or any Bank.
5.2 Corporate Existence, etc.
The Borrower will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full force and
effect its corporate existence, licenses, bonds, franchises,
leases, patents, trademarks, contracts and other rights material
to its business, except where the failure to maintain the
existence of a Subsidiary would not have a Material Adverse
Effect.
5.3 Payment of Taxes and Claims; Tax Consolidation
A. Payment of Taxes and Claims. The Borrower will, and
will cause each of its Subsidiaries to, pay all taxes,
assessments and other governmental charges imposed upon it or any
of its material properties or assets or in respect of any of its
franchises, business, income or property before any penalty or
interest accrues thereon, and all claims (including, without
limitation, claims for labor, services, materials and supplies)
for sums which have become due and payable and which by law have
or may become a Lien upon any of its material properties or
assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided that no such tax,
assessment, charge or claim need be paid if being contested in
good faith by appropriate proceedings promptly instituted and
diligently conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
B. Tax Consolidation. The Borrower will not, nor will
it permit any of its Subsidiaries to, file or consent to the
filing of any Consolidated income tax return with any Person
(other than the Borrower or any of its Subsidiaries).
5.4 Maintenance of Properties; Insurance
The Borrower will maintain or cause to be maintained in
good repair, working order and condition, ordinary wear and tear
excepted, all material properties used or useful in the business
of the Borrower and its Subsidiaries and from time to time will
make or cause to be made all appropriate repairs, renewals and
replacements thereof consistent with past practices. The
Borrower will maintain or cause to be maintained, with
financially sound and reputable insurers (or self-insurance
consistent with the Borrower's past practices), insurance with
respect to its properties and business and the properties and
business of its Subsidiaries against loss or damage of the kinds
customarily insured against by corporations of established
reputation engaged in the same or similar businesses and
similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other
corporations.
5.5 Equal Security for Obligations; No Further Negative
Pledges
A. If the Borrower or any of its Subsidiaries shall
create or assume or suffer to exist any Lien upon any of its
property or assets, whether now owned or hereafter acquired,
other than Liens excepted by the provisions of Section 6.1, it
shall make or cause to be made effective provision whereby the
Obligations will be secured by such Lien equally and ratably with
any and all other Indebtedness thereby secured as long as any
such Indebtedness shall be secured; provided that,
notwithstanding the foregoing, this covenant shall not be
construed as a consent by the Requisite Banks to any creation or
assumption of any such Lien not permitted by the provisions of
Section 6.1.
B. The Borrower shall not, and shall not permit any of
its Subsidiaries to, be a party to any agreement prohibiting, or
amend any agreement to prohibit, the creation or assumption of
any Lien in favor of the Agent and the Banks upon its properties
or assets, whether now owned or hereafter acquired; provided,
however, that the Borrower may incur Indebtedness otherwise
permitted under this Agreement which provides that if the
Obligations are at any time secured by a Lien on the property or
assets of the Borrower or any of its Subsidiaries, such
Indebtedness shall be secured by such Lien equally and ratably
with the Obligations.
5.6 Inspection; Records, etc.; Confidentiality
A. The Borrower will permit any Persons designated by
the Agent or by any Bank to visit and inspect any of the
properties of the Borrower and its Subsidiaries including the
Borrower and its Subsidiaries' financial and accounting records,
and to make copies and take extracts therefrom, and to discuss
their respective affairs, finances and accounts with their
respective officers and independent public accountants, all
during regular business hours, upon reasonable notice to the
office of the chief financial officer or treasurer of the
Borrower and as often as may be reasonably requested.
B. The Agent and each Bank acknowledges that the
Borrower is a public company subject to the Securities Exchange
Act of 1934, as amended from time to time, and that in the course
of complying with this Agreement, the Agent and Banks may obtain
material, non-public information and the Agent and each Bank
hereby agrees to exercise its best efforts to keep any non-public
information delivered or made available to the Agent or any such
Bank pursuant to the Loan Documents confidential from any Person
other than Persons employed by or retained by the Agent or such
Bank who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loans; provided, that
nothing herein shall prevent any Bank from disclosing such
information to any bona fide assignee, transferee or participant
who agrees to be bound by the confidentiality provisions
contained herein in connection with the contemplated assignment
or transfer of any Loans or participation therein (whether or not
such assignment, transfer or participation actually occurs), or
as required or requested by a governmental agency or
representative thereof, or pursuant to legal process or otherwise
required by law, or as required in connection with the exercise
of any remedy under the Loan Documents; provided, however, that
this Section shall no longer apply to information which has
become public other than through a breach by the Agent or any
Bank of this Section.
5.7 Compliance with Laws, etc.
The Borrower shall, and shall cause its Subsidiaries to,
(i) comply with all applicable laws, rules, regulations and
orders of all governmental authorities, noncompliance of which
could materially adversely affect or impair the Agent's or the
Banks' rights, remedies or privileges under or enforceability of
this Agreement or any of the other Loan Documents, including,
without limitation, the Fair Labor Standards Act, and
(ii) exercise all due diligence in order to comply with the
requirements of all other applicable laws, rules, regulations and
orders of any governmental authority (including without
limitation, all Hazardous Materials Laws), noncompliance with
which could reasonably be expected to result in a Material
Adverse Effect.
5.8 Further Assurances
At any time or from time to time upon the request of any
Bank, the Borrower shall, and shall cause its Subsidiaries to,
execute and deliver such further documents and do such other acts
and things as the Agent may reasonably request in order to effect
fully the purposes of this Agreement and each of the other Loan
Documents and to provide for payment of the Loans and interest
thereon, in accordance with the terms of this Agreement.
5.9 Environmental Notice and Inspection
The Borrower shall:
(i) comply and shall cause each of its Subsidiaries
to comply, and shall use its reasonable efforts in order to
cause (a) all tenants under any lease or occupancy agreement
affecting any portion of any property owned, used, leased or
operated by the Borrower or any of its Subsidiaries and
(b) all other Persons on or occupying such property to comply
in all material respects, with all applicable Hazardous
Materials Laws;
(ii) notify the Agent and the Banks in writing and
in reasonable detail, promptly, and in any event within thirty
days of the Borrower or any of its Subsidiaries receiving any
of the following:
(a) written notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the Release or threatened
Release or has or is in violation of any Hazardous
Materials Laws, in each case if the same is reasonably
expected to have a Material Adverse Effect;
(b) written notice that any real or personal
property of the Borrower or any of its Subsidiaries is
subject to an Environmental Lien on a material property;
and
(c) written notice of the commencement of any
judicial or administrative proceeding or investigation
alleging a violation of any Hazardous Materials Laws or
subjecting the Borrower or any of its Subsidiaries to
Environmental Liabilities and Costs, in each case if the
same is reasonably expected to have a Material Adverse
Effect;
(iii)notify the Banks promptly and in any event
within thirty days, of:
(a) any Release which is reasonably expected to
have a Material Adverse Effect and which is required to
be reported to any federal, state or local governmental
or regulatory agency under any applicable Hazardous
Materials Laws;
(b) any and all written communications with respect
to any Environmental Liabilities and Costs that are
reasonably expected to have a Material Adverse Effect;
(c) any Remedial Action taken by the Borrower, any
of its Subsidiaries or any other Person in response to
(1) any Hazardous Materials on, under or about any
property owned, used or operated by the Borrower or any
of its Subsidiaries, the existence of which is reasonably
expected to have a Material Adverse Effect or (2) any
Environmental Liabilities and Costs that are reasonably
expected to have a Material Adverse Effect;
(d) the Borrower's or any of its Subsidiaries'
discovery of any occurrence or condition on any real
property adjoining any material facility owned or
operated by the Borrower or any of its Subsidiaries that
could reasonably be expected to cause such property to be
subject to any restrictions on the ownership, occupancy,
transferability or use thereof under any Hazardous
Materials Laws;
(e) any mandatory request for information from any
governmental agency that indicates that such agency is
investigating whether the Borrower or any of its
Subsidiaries may be potentially responsible for a Release
which Release is reasonably expected to have a Material
Adverse Effect; and
(f) any proposed acquisition of assets, real
estate, or leasing of property by the Borrower or any of
its Subsidiaries that could reasonably be expected to
subject the Borrower or any of its Subsidiaries to a
Material Adverse Effect resulting from Environmental
Liabilities and Costs;
(iv) submit, upon reasonable written request by the
Agent, a report providing an update of the status of any
environmental, health or safety compliance, issue identified
in any notice or report required pursuant to this Section 5.9
and any other environmental, health or safety compliance
obligation, remedial obligation or liability that would
reasonably be expected to have a Material Adverse Effect.
Section 6. NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any
portion of the aggregate Commitments shall be in effect and until
payment in full of all of the Loans and all other amounts owing
hereunder, unless the Requisite Banks shall otherwise give prior
written consent in accordance with Section 9.1 of this Agreement,
the Borrower shall perform all covenants in this Section 6.
6.1 Liens
The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or
asset of the Borrower or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom,
except:
(i) Permitted Liens;
(ii) Liens securing Indebtedness; provided that the sum
of the aggregate principal amount of (A) all Indebtedness
incurred after the Effective Date secured by such Liens plus
(B) all Indebtedness incurred in connection with sale-
leaseback transactions after the Effective Date permitted by
Section 6.6 shall not exceed fifteen percent (15%) of
Consolidated Net Worth at any time; provided, further, that
only Indebtedness related to Permitted Accounts Receivable
Financing Facilities exceeding 45% of the Initial Aggregate
Book Value thereof shall count as usage of this Section
6.1(ii);
(iii) Liens in connection with Permitted Accounts
Receivable Financing Facilities to the extent permitted by
Section 6.5(ii); and
(iv) Liens securing the Obligations so long as such Liens
secure all other senior debt of the Borrower and its
Subsidiaries on an equal and ratable basis to the extent
required by such other senior debt.
6.2 Investments
The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, except:
(i) the Borrower may make and own Investments in Cash
and Cash Equivalents;
(ii) the Borrower and its Subsidiaries may make and own
Investments consisting of the intercompany Indebtedness;
(iii) the Borrower and its Subsidiaries may make and own
Investments in newly formed wholly-owned Subsidiaries; and
(iv) the Borrower may make and own Investments; provided
that (a) no Event of Default has occurred or Event of Default
or Potential Event of Default would occur as a result of the
making or the owning of such Investment and (b) the amount of
any one Investment or a group of Investments related to the
same transaction permitted pursuant to this Section 6.2(iv)
shall not exceed $150,000,000 without the consent of the
Requisite Banks in their sole discretion.
6.3 Financial Covenants
A. Minimum Consolidated Net Worth. The Borrower will
not permit Consolidated Net Worth on the last day of any fiscal
quarter of the Borrower to be less than the sum of (i)
$280,000,000 plus (ii) on a cumulative basis for each fiscal
quarter commencing with the fiscal quarter ending September 30,
1994, an amount equal to fifty percent (50%) of positive
Consolidated Net Income (without reduction for any losses), if
any, for such fiscal quarter.
B. Maximum Consolidated Funded Indebtedness to Total
Capitalization Ratio. The Borrower will not permit the ratio of
Consolidated Funded Indebtedness to Total Capitalization on the
last day of each fiscal quarter of the Borrower to be more than
.45 to 1.00.
C. Minimum Consolidated Interest Coverage Ratio. The
Borrower will not permit the Consolidated Interest Coverage Ratio
on the last day of any fiscal quarter of the Borrower to be less
than 2.00 to 1.00.
6.4 Restriction on Fundamental Changes
The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution), or acquire by purchase or
otherwise a division, business unit or all or substantially all
of the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person, except:
(i) the Borrower may acquire by purchase or otherwise a
division, business unit or all or substantially all of the
business, property or fixed assets of, or acquire stock or
other evidence of beneficial ownership of, any Person;
provided that: (a) no Event of Default or Potential Event of
Default has occurred and is continuing, or would occur as a
result of such acquisition, (b) the acquisition is of a Person
engaged in, or assets utilized in, a similar, or vertically
integrated, line of business as that of the Borrower, (c) the
consideration paid (including, without limitation, liabilities
incurred) for any one such acquisition or any series of
acquisitions related to the same transaction shall not exceed
$150,000,000 without the consent of the Requisite Banks in
their sole discretion; and
(ii) a wholly-owned Subsidiary of the Borrower or a
Subsidiary of the Borrower acquired pursuant to Section 6.4(i)
may be merged or consolidated with the Borrower; provided,
that (a) the Borrower shall be the continuing or surviving
corporation, and (b) no Event of Default or Potential Event of
Default has occurred and is continuing, or would occur as a
result of such merger or consolidation.
6.5 Restriction on Asset Sales
The Borrower or any of its Subsidiaries will not convey,
sell, lease, sublease, transfer or otherwise dispose of, any of
its assets, whether now owned or hereafter acquired, except that
the Borrower and its Subsidiaries may:
(i) sell or dispose of Inventory and worn-out, obsolete
or surplus equipment or property in the ordinary course of
business;
(ii) enter into, or increase the amount of, Permitted
Accounts Receivable Financing Facilities; provided, that the
aggregate Book Value of all accounts receivable sold or
discounted through Permitted Accounts Receivable Financing
Facilities (net of collections which are retained by the
Borrower) will not exceed 60% of the Initial Aggregate Book
Value of all accounts receivable of the Borrower and its
Subsidiaries; provided, further, that the Book Value of
accounts receivable sold or discounted through Permitted
Accounts Receivable Financing Facilities may exceed 45% of the
Initial Aggregate Book Value only to the extent permitted by
Section 6.1(ii);
(iii)in addition to Asset Sales permitted pursuant to
Section 6.5(i), convey, sell, transfer or otherwise dispose of
their respective assets if the aggregate Book Value of Assets
Sold of all such Asset Sales in any consecutive twelve-month
period of the Borrower does not exceed fifteen percent (15%)
of Consolidated Net Worth at any time; provided, however, that
Asset Sales where (A) the proceeds thereof are invested, or
committed to be invested, in the business of Borrower and its
Subsidiaries within 90 days of the receipt of such proceeds
(and in the case of investments committed within such 90 days,
such proceeds are in fact invested within 180 days of such
commitment) or (B) are used to pay or prepay Consolidated
Funded Indebtedness to the extent thereof within 90 days of
the receipt of such proceeds, shall be excluded from the
limitation set forth in this Section 6.5(iii).
6.6 Sales and Lease-Backs
The Borrower will not, and will not permit any of its
Subsidiaries, directly or indirectly, to become or remain liable
as lessee or as guarantor or other surety with respect to any
lease with any Person, whether an Operating Lease or a Capital
Lease, of any property (whether real or personal or mixed)
whether now owned or hereafter acquired, (i) which the Borrower
or any of its Subsidiaries has sold or transferred or is to sell
or transfer to such Person or such Person's Affiliate, or
(ii) which the Borrower or any such Subsidiary intends to use for
substantially the same purpose as any other property which has
been or is to be sold or transferred by the Borrower or any such
Subsidiary to such Person or such Person's Affiliate in
connection with such lease, except that the Borrower and its
Subsidiaries may enter into such transactions if:
(i) such lease is entered into less than 180 days after
the acquisition or occupancy of such property; and
(ii) the aggregate principal amount of (A) Indebtedness
relating to such leases plus (B) Indebtedness secured by any
Lien on any property or asset owned or held by Borrower or its
Subsidiaries, regardless of whether the Indebtedness secured
thereby shall have been assumed by Borrower or its
Subsidiaries or is non-recourse does not exceed fifteen
percent (15%) of Consolidated Net Worth at any time; provided,
however, Indebtedness secured solely by Permitted Liens and
Indebtedness incurred in connection with sale-leaseback
transactions where (A) the proceeds thereof are invested, or
committed to be invested, in the business of Borrower and its
Subsidiaries within 90 days of the receipt of such proceeds
(and in the case of investments committed within such 90 days,
such proceeds are in fact invested within 180 days of such
commitment) or (B) are used to pay or prepay Consolidated
Funded Indebtedness to the extent thereof within 90 days of
the receipt of such proceeds, shall be excluded from the
limitation set forth in this Section 6.6(ii).
6.7 Transactions with Stockholders and Affiliates
The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property
or the rendering of any service) with any holder of 5% or more of
any class of equity securities of the Borrower or with any
Affiliate of the Borrower or any such holder on terms that are
less favorable to the Borrower or any such Subsidiary than those
which might be obtained at the time from Persons who are not such
a holder or Affiliate; provided, however, that the Borrower may
make sales to its wholly-owned Subsidiaries on a basis consistent
with past practices; provided, further, that the Borrower may
enter into such transactions with non-wholly-owned Subsidiaries
as long as the transactions are not, either individually or in
the aggregate, material to the Borrower.
6.8 Conduct of Business
The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than the business
engaged in by it on the date hereof and any businesses or
activities substantially similar to, vertically integrated with,
or related thereto.
6.9 Independence of Covenants
All covenants hereunder shall be given independent effect
so that if a particular action or condition is not permitted by
any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default or
Potential Event of Default if such action is taken or condition
exists.
6.10 Use of Proceeds
The Borrower will not use all or any portion of the
proceeds of any Loan for any purpose other than the purposes set
forth in Section 2.14.
Section 7. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of
Default") shall occur and be continuing:
7.1 Failure to Make Payments When Due
The Borrower shall fail to pay any principal of any Loan
or shall fail to pay any other amount due under this Agreement
(other than interest on the Loans and fees due to the Banks
hereunder) when the same becomes due and payable; or the Borrower
shall fail to pay any interest on any Loan or shall fail to pay
any fees due to the Banks under this Agreement within three (3)
Business Days after the same becomes due and payable; or
7.2 Breach of Warranty
Any representation or warranty made or deemed made by the
Borrower (or any of its officers) in this Agreement or any of the
other Loan Documents or certificate or other writing delivered
pursuant hereto or thereto shall prove to have been incorrect or
misleading in any material respect when made or deemed made; or
7.3 Breach of Covenants
The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5 or Section 6; or the
Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement or any of the
other Loan Documents on its part to be performed or observed if
such failure shall remain unremedied or unwaived for thirty (30)
days after written notice thereof shall have been given to the
Borrower by the Agent; or
7.4 Breach of Other Agreements
The Borrower shall fail to pay any portion of principal
of or premium or interest on any item or items of Indebtedness,
which Indebtedness is in an individual or aggregate principal
amount greater than $12,000,000 (but excluding Indebtedness
outstanding hereunder), or shall fail to pay any portion of one
or more Contingent Obligations, which Contingent Obligations are
in an individual or aggregate principal amount greater than
$12,000,000, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue unwaived after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness or Contingent
Obligation; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation and shall continue after
the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of
such Indebtedness or Contingent Obligation; or any such
Indebtedness or Contingent Obligation shall be declared to be due
and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity
thereof; or
7.5 Bankruptcy
(i) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the
Borrower or any of its Principal Subsidiaries in an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, which decree
or order remains unstayed or undischarged for 60 days; or any
other similar relief shall be granted under any applicable
federal or state law and remains unstayed or undischarged for
60 days; or
(ii) an involuntary case is commenced against the
Borrower or any of its Principal Subsidiaries under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Borrower or any
Principal Subsidiaries, or over all or a substantial part of
its property, shall have been entered; or there shall be the
involuntary appointment of an interim receiver, trustee or
other custodian of the Borrower or any Principal Subsidiaries
for all or a substantial part of its property; or there shall
be the issuance of a warrant of attachment, execution or
similar process against any substantial part of the property
of the Borrower or any of its Principal Subsidiaries, and the
continuance of any such event referred to in this clause (ii)
for sixty (60) days unless dismissed, bonded or discharged; or
(iii) the Borrower or any of its Principal
Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order
for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial
part of its property or shall make any assignment for the
benefit of creditors; or
(iv) the Borrower or any of its Principal
Subsidiaries shall fail, be unable, or admit its inability to
pay its debts as such debts become due; or the Board of
Directors of the Borrower or any of its Principal Subsidiaries
(or any committee thereof) adopts any resolution to approve or
otherwise authorizes any of the actions referred to in clause
(iii) above or this clause (iv); or
7.6 Judgments
Any unpaid judgments, orders for the payment of money
(other than judgments and orders covered by insurance, but only
if the insurer has admitted liability with respect to such
judgments and orders), writs or warrants of attachment involving
amounts in excess of $5,000,000 in the aggregate shall be entered
or filed against any of the Borrower or any of its Principal
Subsidiaries and shall remain undischarged, unvacated, unbonded,
unappealed or unstayed for a period of thirty (30) days or in any
event later than thirty (30) days prior to any sale under any
such judgment, order, writ or warrant; or
7.7 Dissolution
Any order, judgment or decree shall be entered against
the Borrower or any of its Principal Subsidiaries decreeing the
dissolution or split up of the Borrower or any of its Principal
Subsidiaries and such order shall remain undischarged or unstayed
for a period in excess of thirty (30) days; or
7.8 ERISA
There occurs one or more ERISA Events which individually
or in the aggregate results in or might reasonably be expected to
result in liability of the Borrower or any of its ERISA
Affiliates in excess of $5,000,000 during the term of this
Agreement; or there exists, an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding
for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities) which exceeds
$5,000,000 for thirty (30) consecutive days; or
7.9 Control of the Borrower
Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
Securities and Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Borrower (or other securities
convertible into such securities) representing 20% or more of the
combined voting power of all securities of the Borrower entitled
to vote in the election of directors, other than securities
having such power only by reason of the happening of a
contingency; provided, however, that The Dan Murphy Foundation
and Persons acting in concert with The Dan Murphy Foundation may
acquire an aggregate beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities and Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Borrower (or other securities
convertible into such securities) representing up to 49% of the
combined voting power of all securities of the Borrower entitled
to vote in the election of directors, other than securities
having such power only by reason of the happening of a
contingency;
THEN, and in any such event, the Agent shall at the request, or
may with the consent, of the Requisite Banks, (i) by notice to
the Borrower, declare the Commitments to be terminated, whereupon
the same shall forthwith terminate, (ii) by notice to the
Borrower, declare (a) the Loans and all interest thereon and
(b) all other amounts payable under this Agreement or any of the
other Loan Documents to be forthwith due and payable, whereupon
the Loans, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; and (iii) exercise any other
remedies provided under this Agreement or by law; provided that
in the event of an Event of Default under Section 7.5, (A) the
Commitments shall automatically be terminated and (B) the Loans,
all interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by
the Borrower.
Upon acceleration, the Banks and the Agent, or any of
them, without notice to or demand upon the Borrower which are
expressly waived by the Borrower, may proceed (but only with the
consent of Requisite Banks) to protect, exercise, and enforce
their rights and remedies under this Agreement and such other
rights and remedies as are provided by law or equity. Requisite
Banks may determine in their sole discretion the order and manner
in which the Banks' rights and remedies are to be exercised, and
all payments received by the Agent or the Banks, or any one or
more of them, shall be applied as follows (regardless of how each
Bank may treat the payments for the purpose of its own
accounting); first, to all costs and expenses (including, without
limitation, Attorney Costs) incurred by the Agent or the Banks,
or any of them, in enforcing any Obligations of, or in collecting
any payments due from, the Borrower hereunder by reason of such
Event of Default; second, to all fees and expenses due and owing
to the Agent or the Banks, third, ratably to accrued interest;
fourth, ratably to principal amounts outstanding; fifth, to other
Obligations then due and owing under this Agreement and each of
the other Loan Documents; and sixth to whomsoever shall be
lawfully entitled to receive such funds.
Notwithstanding anything to the contrary contained in
this Section, if any Bid Loan Bank shall suffer an Event of
Default under Section 7.1 due to the Borrower's failure to pay
any amount of principal on or interest on any Bid Loan, such Bid
Loan Bank may send a written request to the Agent to obtain
approval of the Requisite Banks to terminate the Commitments and,
if such approval is not obtained within ten (10) Business Days
after the date such request is received, the affected Bid Loan
Bank (or assignee) may commence enforcement of such default by
any and all legal means.
Section 8. THE AGENT
8.1 Authorization and Appointment
Each Bank hereby irrevocably appoints, designates and
authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
8.2 Delegation of Duties
The Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable
care.
8.3 Liability of Agent
None of the Agent-Related Persons shall (i) be liable for
any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Banks for any recital, statement,
representation or warranty made by the Borrower or any Subsidiary
or Affiliate of the Borrower, or any officer thereof, contained
in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the
Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or
records of the Borrower or any of the Borrower's Subsidiaries or
Affiliates.
8.4 Reliance by Agent
A. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and
upon advice and statements of legal counsel (including counsel to
the Borrower), independent accountants and other experts selected
by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or
concurrence of the Requisite Banks as it deems appropriate and,
if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a
request or consent of the Requisite Banks and such request and
any action taken or failure to act pursuant thereto shall be
binding upon all of the Banks.
B. For purposes of determining compliance with the
conditions specified in Section 3.1, each Bank that has executed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the
Bank.
8.5 Notice of Default
The Agent shall not be deemed to have knowledge or notice
of the occurrence of any Potential Event of Default or Event of
Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Agent for
the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Borrower referring to this
Agreement, describing such Potential Event of Default or Event of
Default and stating that such notice is a "notice of default".
The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such
Potential Event of Default or Event of Default as may be
requested by the Requisite Banks in accordance with Section 7;
provided, however, that unless and until the Agent has received
any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with
respect to such Potential Event of Default or Event of Default as
it shall deem advisable or in the best interest of the Banks.
8.6 Credit Decision
Each Bank acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that
no act by the Agent hereinafter taken, including any review of
the affairs of the Borrower and its Subsidiaries, shall be deemed
to constitute any representation or warranty by any Agent-Related
Person to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its
Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Bank also represents that it will, independently
and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or
other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of
the Borrower which may come into the possession of any of the
Agent-Related Persons.
8.7 Indemnification
Whether or not the transactions contemplated hereby are
consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the
Borrower to do so), pro rata, from and against any and all
Indemnified Liabilities; provided, however, that no Bank shall be
liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from
such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the Agent
upon demand for its ratable share of any reasonable costs or
out-of-pocket expenses (including all fees and disbursements of
any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal
counsel) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses
by or on behalf of the Borrower. The undertaking in this Section
shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
8.8 Agent in Individual Capacity
BofA and its Affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with
the Borrower and its Subsidiaries and Affiliates as though BofA
were not the Agent hereunder and without notice to or consent of
the Banks. The Banks acknowledge that, pursuant to such
activities, BofA or its Affiliates may receive information
regarding the Borrower or its Affiliates (including information
that may be subject to confidentiality obligations in favor of
the Borrower or such Subsidiary) and acknowledge that the Agent
shall be under no obligation to provide such information to them.
With respect to its Loans, BofA shall have the same rights and
powers under this Agreement as any other Bank and may exercise
the same as though it were not the Agent, and the terms "Bank"
and "Banks" include BofA in its individual capacity.
8.9 Successor Agent
The Agent may, and at the request of the Requisite Banks
shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent resigns under this Agreement, the Requisite Banks shall
appoint from among the Banks a successor agent for the Banks. If
no successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Borrower, a successor agent
from among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring
Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 8 and Sections 9.4 and 9.5
shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the
Requisite Banks appoint a successor agent as provided for above.
8.10 Withholding Tax
A. If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under
Sections 1441 or 1442 of the Code, such Bank agrees with and in
favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, properly completed IRS Forms 1001 and W-8 before the
payment of any interest in the first calendar year and before
the payment of any interest in each third succeeding calendar
year during which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade
or business of such Bank, two properly completed and executed
copies of IRS Form 4224 before the payment of any interest is
due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may
be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
B. If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS
Form 1001 and such Bank sells, assigns, grants a participation
in, or otherwise transfers all or part of the Obligations of the
Borrower to such Bank, such Bank agrees to notify the Agent of
the percentage amount in which it is no longer the beneficial
owner of Obligations of the Borrower to such Bank. To the extent
of such percentage amount, the Agent will treat such Bank's IRS
Form 1001 as no longer valid.
C. If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells,
assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Borrower to such Bank, such Bank
agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of
the Code.
D. If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any
interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by
Section (a) of this Section are not delivered to the Agent, then
the Agent may withhold from any interest payment to such Bank not
providing such forms or other documentation an amount equivalent
to the applicable withholding tax.
E. If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not
delivered, was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Bank shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent
as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs
and expenses (including all fees and disbursements of any law
firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel). The
obligation of the Banks under this Section shall survive the
payment of all Obligations and the resignation or replacement of
the Agent.
Each Bank hereby irrevocably appoints, designates and
authorizes BofA to act as the Agent under this Agreement and
each of the other Loan Documents and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement and each of the other Loan Documents as are
expressly delegated to the Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement and the
other Loan Documents (including, without limitation, enforcement
or collection of this Agreement), the Agent shall not be required
to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of Requisite Banks, and such instructions shall be
binding upon all Banks; provided that the Agent shall not be
required to take any action which exposes the Agent to personal
liability or which is contrary to this Agreement or any of the
other Loan Documents or applicable law. The Agent shall not by
reason of this Agreement or any of the other Loan Documents have
a fiduciary relationship with any Bank. The Agent agrees to give
to each Bank prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement and any of the
other Loan Documents and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise
exist against the Agent.
Section 9. MISCELLANEOUS
9.1 Amendments, Etc.
No amendment or waiver of any provision of this Agreement
nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and
signed by the Requisite Banks, the Borrower and the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks and the Agent, do any of the
following: (a) increase the Commitments of the Banks or subject
the Banks to any additional obligations, (b) reduce the principal
of, or interest on, the Loans or any fees or other amounts
payable hereunder, (c) extend the final scheduled maturity date
of the Loans, (d) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans, or the number
of Banks, which shall be required for the Banks or any of them to
take any action hereunder or (e) amend this Section 9.1 or the
definition of Requisite Banks; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Banks required above to take such
action, shall affect the rights or duties of the Agent under this
Agreement or any other Loan Document. Notwithstanding the
foregoing, each Bid Loan Bank may, in its sole discretion, if
there exists no Potential Event of Default or Event of Default,
and without the consent or signature of the Agent or any other
Bank (provided, however, that prompt notice thereof is provided
by such Bid Loan Bank to the Agent), accept any prepayment on
account of any such Bid Loan Bank's Bid Loans. No notice to or
demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this Section 9.1 shall be
binding upon each holder of any Indebtedness resulting from the
making of Loans hereunder at the time outstanding, each future
holder of any such Indebtedness, and if signed by the Borrower,
on the Borrower.
9.2 Notices, Etc.
All notices and other communications provided for
hereunder shall be in writing (including letter, telegraph,
telex, facsimile transmission or cable communication) and mailed,
telegraphed, telexed, cabled or delivered. For the purposes
hereof, the addresses of the parties named on the signature pages
hereto shall be as set forth under each party's name on the
signature pages hereto (or with respect to any Bank not listed on
the signature pages hereto, at the address specified for such
Bank in the Assignment and Acceptance pursuant to which it became
a Bank) or, as to the Borrower or the Agent, at such other
address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice
to the Borrower and the Agent. All such notices and
communications shall, when mailed, when delivered by courier or
in person, telegraphed, telexed, telecopied or cabled, be
effective three days after mailing, when delivered, when
delivered to the telegraph company, when confirmed by telex
answerback, when received by telecopy by the Agent or when
delivered to the cable company, respectively, except that notices
and communications to the Agent pursuant to Section 2 or 8 shall
not be effective until received by the Agent.
9.3 No Waiver; Remedies
No failure on the part of any Bank or the Agent to
exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
9.4 Costs and Expenses
Whether or not the transactions contemplated hereby shall
be consummated, the Borrower agrees to pay on demand all
reasonable costs and expenses incurred by the Agent and the
Arranger in connection with the syndication, preparation,
execution, delivery, administration, modification and amendment
of this Agreement, each of the other Loan Documents and the other
documents (including travel costs and other expenses and Attorney
Costs) to be delivered under this Agreement. In addition, the
Borrower agrees to pay on demand, all reasonable costs and
expenses of each Bank and the Agent, if any (including, without
limitation, appraisal, valuation, audit and consulting costs and
expenses and Attorney Costs, independent accounting firms or
other experts for the Agent and local counsel who may be retained
by such counsel) in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding) of this Agreement, each of the other Loan Documents
and the other documents to be delivered under this Agreement, or
in connection with any refinancing or restructuring of the credit
arrangement provided under this Agreement in the nature of a
"workout" or of any insolvency or bankruptcy proceeding.
9.5 Indemnification
The Borrower agrees to pay, and on demand to indemnify
and hold harmless the Agent and each Bank and their respective
Affiliates, and each of their respective successors, assigns,
directors, officers, employees, servants, attorneys and agents
(collectively, the "Indemnitees") from and against any and all
claims, including claims based on strict liability in tort,
damages, losses, liabilities, demands, suits, Attorney Costs,
judgments, causes of action and all legal proceedings, whether
civil, criminal, administrative or in arbitration, whether or not
such Indemnitee is a party thereto, penalties, fines and other
sanctions and expenses, including, without limitation, reasonable
fees and disbursements of counsel, which may be imposed on,
incurred by or asserted against any Indemnitee:
(i) by reason of any inaccuracy in any material respect,
or any untrue statement or alleged untrue statement of any
material fact, made in any report, exhibit or publication in
connection with the effectiveness of this Agreement or any
other Loan Document, the incurrence of the Indebtedness
hereunder and the transactions contemplated hereby, or by
reason of the omission or alleged omission to state therein a
material fact necessary to make such statements, in the light
of the circumstances under which they were made, not
misleading;
(ii) by reason of or in connection with the execution,
delivery, performance, administration or enforcement of this
Agreement or any other Loan Document or any proposal, fee, or
commitment letter relating thereto, or any transaction
contemplated by this Agreement;
(iii)arising under or pursuant to any Hazardous Materials
Laws relating to the business, operations or properties of the
Borrower;
(iv) arising out of or relating to Borrower's managing a
Borrower Auction; or
(v) arising out of or relating to the use of proceeds of
the Loans;
(collectively, the "Indemnified Liabilities"); provided that the
Borrower shall not be liable to any Indemnitee for (a) any
portion of such claims, damages, liabilities and expenses that a
court of competent jurisdiction shall have determined by a
judgment to have directly resulted from such Indemnitee's gross
negligence or willful misconduct, (b) any settlement by such
Indemnitee of any claim or action involving the payment of
monetary damages effected without the consent of the Borrower,
which consent shall not be unreasonably withheld; provided, that
such consent shall not be required if such Indemnitee determines
in good faith on advice of counsel that such settlement is
advisable to avoid fines or other penalties (whether or not
monetary) adverse to the interests of such Indemnitee, (c) any
claims, damages, liabilities and expenses directly resulting from
a claim by the Borrower against the Agent or any Bank and (d) any
claims, damages, liabilities and expenses directly resulting from
a claim by the Agent against a Bank or by a Bank against the
Agent or another Bank which claim did not, directly or
indirectly, arise out of any actions taken, or any failure to
take action, by the Borrower or any of its Subsidiaries. To the
extent that the undertaking to indemnify, pay and hold harmless
set forth in the immediately preceding sentence may be
unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion which
it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all indemnified liabilities incurred
by the Indemnitees or any of them.
If the Borrower is so requested by the Indemnitees, or
the Borrower so elects, the Borrower will assume the defense of
any action or proceeding for which the Borrower is required to
indemnify the Indemnitees pursuant to this Section 9.5, including
the employment of counsel reasonably satisfactory to the
Indemnitees and the payment of the fees and disbursements of such
counsel. In any action or proceeding with respect to which the
Borrower has assumed the defense of such proceeding pursuant to
this Section, an Indemnitee will have the right to participate in
such litigation and to retain its own counsel at such party's own
expense. In any such action or proceeding, the Borrower shall at
all times use reasonable efforts to keep the Indemnitees apprised
of the status of such action or proceeding.
9.6 Binding Effect
This Agreement shall become effective when it shall have
been executed by the Borrower, the Agent and the Banks and
thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent, each Bank and their respective successors
and assigns permitted under Section 9.7, except that the Borrower
shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Banks.
9.7 Assignments and Participations
A. Each Bank may assign to one or more banks all or a
portion of its rights and obligations under this Agreement (other
than its rights in respect of Bid Loans); provided that (i) no
assignment shall, without the consent of the Borrower, require
the Borrower to file a registration statement with the SEC or
apply to qualify the Loans under the blue sky laws of any state,
(ii) each such assignment by a Bank shall be of a constant, and
not a varying, percentage of all of the assigning Bank's rights
and obligations under this Agreement with respect to the Loans
(other than Bid Loans) and Commitments, (iii) the amount of the
Commitments or Loans of the assigning Bank being assigned
pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment)
shall unless such assignment is to a Bank or an Affiliate of a
Bank in no event be less than $5,000,000; provided that the
amount of the Commitment and the amount of the Loans of the
assigning Bank being assigned may be in an amount equal to such
assigning Bank's entire Commitments and such Bank's entire
outstanding Loans, (iv) each such assignment shall be to an
Eligible Assignee and (except for an Eligible Assignee that is a
Bank or an Affiliate of a Bank) shall be consented to in advance
in writing by the Agent and the Borrower, and (v) the parties to
each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee from
the assignor of $2,500. Upon such execution, delivery,
acceptance and recording, from and after the later of the
effective date specified in each Assignment and Acceptance and
the date of acceptance thereof by the Agent, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations
of a Bank hereunder and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's
rights and obligations under this Agreement, such Bank shall
cease to be a party hereto). Any Bank may at any time pledge all
or any portion of its rights relating to the Loans made under
this Agreement to a Federal Reserve Bank or an Affiliate of such
Bank; provided that no such pledge shall release such Bank from
its obligations hereunder.
B. By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank assigns without
recourse and makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or
any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto; (ii) such assigning Bank
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under this Agreement or any other Loan Document or
any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial
statements referred to in Section 4.3 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Bank 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 action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such
action as the Agent, on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a
Bank.
C. The Agent shall maintain at its address referred to
in Section 9.2 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Banks, the
Commitments of each Bank, the Committed Loans and the Bid Loans
made by each Bank and each repayment in respect of the principal
amount of such Loans of each Bank from time to time. The entries
in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Banks
may treat each Person whose name is recorded in the Register as a
Bank hereunder for all purposes of this Agreement. Failure to
make recordation in the Register, or any error on such
recordation, shall not affect the Borrower's obligations in
respect of such Loans. The Register shall be available for
inspection by the Borrower, the Agent or any Bank at any
reasonable time and from time to time upon reasonable prior
notice.
D. Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee representing that
it is an Eligible Assignee, the Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the
form of Exhibit III annexed hereto, and subject to receipt of the
written consent of the Borrower and the Agent, if required
hereby, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower.
E. Each Bank may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Loans
owing to it); provided, that (i) no participation shall, without
the consent of the Borrower, require the Borrower to file a
registration statement with the SEC or apply to qualify the Loans
under the blue sky laws of any state, (ii) such Bank's
obligations under this Agreement (including, without limitation,
its Commitment to the Borrower hereunder) shall remain unchanged,
(iii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iv) the
Borrower, the Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement, and (v) no Bank
shall sell any participation under which the participant shall
have rights to approve any amendment or waiver of this Agreement
or any other Loan Document except to the extent such amendment or
waiver would (a) extend the final scheduled maturity date of the
Loans or (b) reduce the principal of, or interest on, the Loans
or any fees or other amounts payable hereunder.
F. Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 9.7, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Bank by or on behalf of the Borrower;
provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information
relating to the Borrower received by it from such Bank.
G. Any Bank may, by notice to the Agent and the
Borrower, request that all or part of the principal amount of the
Borrower's Obligations to such Bank in respect of the Commitments
and/or Bid Loans hereunder be evidenced by a Committed Loan Note
and/or Bid Loan Note, as applicable. Within three (3) Business
Days of the Borrower's receipt of such request, the Borrower
shall execute and deliver to the applicable Bank a Note or Notes
in the principal amount(s) specified in such request, payable to
the requesting Bank or, if so specified in such request, any
Person who is an assignee of such Bank pursuant to this Section
9.7.
9.8 Severability
In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
9.9 Survival of Warranties and Certain Agreements
A. All agreements, representations and warranties made
herein shall survive the execution and delivery of this
Agreement, the making of the Loans hereunder and, except as set
forth in Section 9.9B, terminate upon the indefeasible payment in
full of the Obligations.
B. Notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of the Borrower
set forth in Sections 2.10, 2.11, 9.4 and 9.5 shall survive the
payment of the Loans for a period of one (1) year after the
termination of this Agreement.
9.10 Headings
Section and Section headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be
given any substantive effect.
9.11 Applicable Law; Jurisdiction; Waiver of Jury Trial
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. The Banks retain all of their rights under federal
law, including those relating to interest rates. The Borrower
and each Bank hereby submits to the non-exclusive jurisdiction of
the state courts of the State of California and the federal
courts located in the State of California for all matters arising
under this Agreement and related documents. Service of process
sufficient for personal jurisdiction in any action against the
Borrower in California may be made by registered or certified
mail, return receipt requested, to the address specified pursuant
to Section 9.2.
THE BORROWER, THE AGENT AND THE BANKS HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION AND THE BANK/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction,
including without limitation, contract claims, tort claims,
breach of duty claims, and all other common law and statutory
claims. The Agent, the Banks and the Borrower each acknowledge
that this waiver is a material inducement to enter into a
business relationship, that each has already relied on the waiver
in entering into this Agreement, and that each will continue to
rely on the waiver in their related future dealings. The Agent,
the Banks and the Borrower further warrant and represent that
each has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
LOAN. In the event of litigation, this Agreement may be filed as
a written consent to a trial by the court.
9.12 Execution in Counterparts; Effectiveness
This Agreement and any amendments, waivers, consents, or
supplements may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the
same instrument.
9.13 Obligations Several
The obligation of each Bank hereunder is several, and no
Bank shall be responsible for the obligation or commitment of any
other Bank hereunder. Nothing contained in this Agreement and no
action taken by the Banks pursuant hereto shall be deemed to
constitute the Banks to be a partnership, an association, a joint
venture or any other kind of entity.
9.14 Complete Agreement
This written Agreement, together with the exhibits to
this Agreement and other documents described herein is intended
by the parties as a final expression of their agreement and is
intended as a complete statement of the terms and conditions of
their agreement.
9.15 Assignments from Original Agreement; Amendment and
Restatement.
A. BofA and Chemical Bank are party to the Original
Agreement and are the only banks thereunder continuing as Banks
hereunder. By separate letter agreement, BofA and Chemical Bank
are concurrently herewith purchasing and assuming from such banks
their commitments and other rights and obligations under the
Original Agreement (the "Assigned Interests"). By this Section
9.15, BofA and Chemical Bank hereby simultaneously sell and
assign to the other Banks party hereto, and the other Banks party
hereto hereby agree to purchase and assume, the Assigned
Interests, without recourse, effective as of the Effective Date,
in an amount such that all Banks party hereto, after giving
effect to any adjustments in the Commitments from the commitments
under the Original Agreement, will have the Pro Rata Shares set
forth on Schedule A hereto.
Each of BofA and Chemical Bank severally represent and
warrant to the other Banks hereunder that it is the legal and
beneficial owner of its Assigned Interests and that such Assigned
Interests are free and clear of any adverse claim. Other than as
provided above, neither BofA nor Chemical Bank makes any
representation or warranty and assumes no responsibility with
respect to the Original Agreement, the financial condition of the
Company, or the performance or observance by the Company of any
of its obligations under the Original Agreement or any other
instrument or document furnished pursuant thereto.
B. After giving effect to the assignments set forth
above, any amounts outstanding under the Original Agreement not
otherwise repaid or converted or continued as Loans hereunder on
or before the Effective Date are, effective as of the Effective
Date, deemed continued and outstanding under this Agreement with,
in the case of any eurodollar loans and bid loans outstanding
thereunder, the same interest periods and same adjusted
Eurodollar rates, Eurodollar rate bid margins and absolute rates,
as applicable, hereunder as existed for such loans under the
Original Agreement, but with the Applicable Amount for Eurodollar
Rate Loans applicable to such loans as of the Effective Date.
WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first
written above.
BORROWER: CALMAT CO.
By: /s/ Edward J. Kelly
_______________________________________
Edward J. Kelly
Senior Vice President,
Treasurer and
Chief Accounting Officer
By: /s/ Richard S. Yamashita
_______________________________________
Richard S. Yamashita
Assistant Treasurer
AGENT: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ David M. Terrance
_______________________________________
David M. Terrance
Vice President
(Signatures continue)<PAGE>
BANKS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Yvonne Dennis
_______________________________________
Yvonne Dennis
Vice President
CHEMICAL BANK
By: /s/ J.C. Howe
_______________________________________
Name: J.C. Howe
Title: Vice President
FIRST NATIONAL BANK OF CHICAGO
By: /s/ L. Gene Beube
________________________________________
Name: L. Gene Beube
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Andrea Collias
________________________________________
Name: Andrea Collias
Title: Assistant Vice President
WELLS FARGO BANK, N.A.
By: /s/ David Neumann
________________________________________
Name: David Neumann
Title: Vice President
<PAGE>
EXHIBIT I
FORM OF NOTICE OF BORROWING
Pursuant to that certain First Amended and Restated
Credit Agreement dated as of June 30, 1994 (such Agreement, as it
may be amended, supplemented, restated or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used
herein without definition shall have the meanings set forth in
the Credit Agreement), by and among CALMAT CO., a Delaware
corporation (the "Borrower"), the Banks party thereto and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as agent
for the Banks (the "Agent"), this notice represents the
Borrower's request to borrow on ___________________, 199__ from:
[COMMITTED Banks on a pro rata basis an aggregate
LOANS] amount of $________________ as
[Base/CD/Eurodollar] Rate Loans. [The initial
Interest Period for such Borrowing is requested to
be a ________ [month/day] period.]
[BID LOANS] INSERT NAME OF BANK(S)] an aggregate principal
amount of offers accepted, $_____________, as Bid
Loans for the Interest Periods set forth in the
copy of the Competitive Bid Request annexed
hereto.
The proceeds of such Loans are to be deposited in the
Borrower's account, Account No. ______________________, at
_________________________________.
The undersigned officer, to the best of such officer's
knowledge, and the Borrower, certify that (i) the undersigned has
read Sections 3.1. and 3.2 of the Credit Agreement and any
definitions or other provisions contained in the Credit Agreement
relating thereto (the "Conditions Precedent"), and have made or
caused to be made such examination or investigation as is
necessary to enable him or her to express an informed opinion as
to whether or not the Conditions Precedent have been complied
with and that, in his or her opinion, each of the Conditions
Precedent has been complied with and (ii) the amount of the
proposed Borrowing when added to the aggregate principal amount
of outstanding Loans immediately prior to such Borrowing will not
exceed the Commitments then in effect.
DATED: ___________________
CALMAT CO.
By:__________________________
Title:_______________________
<PAGE>
EXHIBIT II
FORM OF NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain First Amended and Restated Credit
Agreement dated as of June 30, 1994 (such Agreement, as it may be
amended, supplemented, restated or otherwise modified from time
to time, the "Credit Agreement", by and among CALMAT CO., a
Delaware corporation (the "Borrower"), the Banks party thereto
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BofA"), as agent for the Banks (the "Agent"), this notice
represents the Borrower's request to:
[A*: convert $__________________ in principal amount of
presently outstanding [Base/Eurodollar/CD] Rate Loans
to [Base/Eurodollar/CD] Rate Loans on _______________,
199_. [The Interest Period for such [Eurodollar/CD]
Rate Loans is requested to be a ____________[month/day]
period.]
[B. continue as [Eurodollar/CD] Rate Loans $__________ in
principal amount of presently outstanding
[Eurodollar/CD] Rate Loans with the Interest period
ending on _________________, 199_. The Interest period
commencing on the last day of such Interest period is
requested to be a ________ [month/day] period.]
The undersigned officer, to the best of such officer's
knowledge, and the Borrower certify that no Potential Event of
Default or Event of Default has occurred and is continuing or
would result from the proposed conversion/continuation.
Capitalized terms used herein without definition shall have
the meanings set forth in the Credit Agreement.
DATED: ___________________
CALMAT CO.
By:__________________________
Title:_______________________
____________________
*Insert option A to convert Loans to another Type and
option B to continue Loans of a certain type.<PAGE>
EXHIBIT III
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
ASSIGNMENT AND ACCEPTANCE AGREEMENT
Dated _______________, 19__
Reference is made to that certain First Amended and
Restated Credit Agreement dated as of June 30, 1994 (as it may be
amended, supplemented, restated or otherwise modified from time
to time, the "Credit Agreement"; capitalized terms defined
therein and not otherwise defined herein being used herein as
therein defined) by and among CALMAT CO., a Delaware corporation
(the "Borrower"), the Banks party thereto and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA") as agent for the
Banks (the "Agent"), pursuant to which __________________
("Assignor") has committed to make loans (the "Loans") to the
Borrower.
The Assignor and ________________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to [all/a portion] of the
Assignor's rights and obligations under the Credit Agreement as
of the date hereof which represents the percentage interest
specified in Section 1 of Schedule 1 hereto of all outstanding
rights and obligations under the Credit Agreement (the "Assigned
Interest"), including, without limitation, the percentage
interest specified in Section 1 of Schedule 1 hereto of the
Assignor's Commitment and the Loans owing to the Assignor. After
giving effect to such sale and assignment, the Assignee's
Commitments and the amount of the Loans owing to the Assignee
will be as set forth in Section 2 of Schedule 1 hereto.
2. The sale and assignment contemplated hereby shall
become effective as of the date (the "Effective Date") upon which
(i) this Assignment and Acceptance Agreement has been executed by
the Assignor and Assignee, (ii) the Assignee has paid to the
Assignor, in same day funds, at such address and account as the
Assignor shall advise the Assignee, $__________________, and
(iii) the applicable conditions contained in Section 9.7 of the
Credit Agreement have been satisfied. The Effective Date is set
forth in Section 3 of Schedule 1 hereto. From and after the
Effective Date, the Assignor agrees that the Assignee shall be
entitled to all rights, powers and privileges of the Assignor
under the Credit Agreement to the extent of the Assigned Interest
including without limitation (a) the right to receive all
payments in respect of the Assigned Interest for the period from
and after the Effective Date, whether on account of principal,
interest, fees, indemnities in respect of claims arising after
the Effective Date, increased costs, additional amounts or
otherwise; (b) the right to vote and to instruct the Agent under
the Credit Agreement according to its pro rata share based on the
Assigned Interest; and (c) the right to receive notices,
requests, demands and other communications. The Assignor agrees
that it will promptly remit to the Assignee any amount received
by it in respect of the Assigned Interest (whether from the
Borrower, the Agent or otherwise) in the same funds in which such
amount is received by the Assignor.
3. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any
adverse claim; (ii) other than as provided herein, makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with the Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished
pursuant thereto. Except as specified in this Section 3, the
assignment of the Assigned Interest contemplated hereby shall be
without recourse to the Assignor.
4. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.3 thereof and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance and purchase the Assigned Interest;
(ii) agrees that it will, independently and without reliance upon
the Assignor, the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement; (iii) represents and
warrants that it is an Eligible Assignee as required by Section
9.7(A)(iv) of the Credit Agreement; (iv) appoints and authorizes
the Agent to take such action as the Agent, on its behalf and to
exercise such powers under the Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers
which are reasonably incidental thereto; and (v) agrees that it
will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank.
5. This Assignment may be executed in any number of
counterparts and by different parties in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the
same instrument.
6. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such
execution being made on Schedule 1 hereto.
<PAGE>
Schedule 1
to
Assignment and Acceptance Agreement
Dated _______________, 19__
Section 1.
Percentage Interest of
all outstanding rights
and obligations under the
Credit Agreement: _____________%
Percentage Interest of
Assignor's Commitments
and Loans owing to
Assignor under the
Credit Agreement being
assigned to Assignee
hereby: ______________%
Section 2.
Assignee's Commitment: $_____________
Aggregate Outstanding
Principal Amount of
Loans owing
to the Assignee: $_____________
<PAGE>
Section 3.
Effective Date: __________, 19__
[NAME OF ASSIGNOR]
By:______________________
Title:
[NAME OF ASSIGNEE]
By:______________________
Title:
CONSENTED TO AND
ACKNOWLEDGE THIS
___ DAY OF _____________, 19__
CALMAT CO.
By:_________________________
Title:
CONSENTED TO AND
ACKNOWLEDGED THIS
___ DAY OF _____________, 19__
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as the Agent under the Credit Agreement
By:_________________________
Title:
<PAGE>
EXHIBIT IV
FORM OF COMPLIANCE CERTIFICATE
[DATE]
Bank of America National Trust
and Savings Association, as Agent
Global Agency
1455 Market Street, 12th Floor
San Francisco, California 94103
Re: Compliance Certificate
Ladies and Gentlemen:
This Certificate is given in accordance with Section
5.1(iii)(b) of the First Amended and Restated Credit Agreement
dated as of June 30, 1994 (such agreement, as it may be amended,
supplemented, restated or otherwise modified from time to time,
the "Credit Agreement") by and among CALMAT CO., a Delaware
corporation (the "Borrower"), the Banks party thereto and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as agent
for the Banks (the "Agent"). Capitalized terms used herein
without definition shall have the meanings assigned to such terms
in the Credit Agreement. We hereby certify that:
(a) We are the ______________________________ and
_____________________________ of the Borrower;
(b) We have reviewed the terms of the Credit Agreement
and have made or caused to be made under our supervision, a
review in reasonable detail of the transactions and
financial condition of the Borrower during the accounting
period covered by the enclosed financial statements;
(c) To the best of our knowledge and belief no event
or condition exists which constitutes an Event of Default or
Potential Event of Default as of the date of this
certificate except as set forth below;
(d) The representations and warranties set forth in
Section 4 of the Credit Agreement are true, correct and
complete in all material respects on and as of the date of
this Certificate to the same extent as though made on and as
of the date hereof;
[(e) 1 The independent certified public accountants
who have reported on the Borrower's Consolidated financial
statements have reviewed the financial matters covered by
this Compliance Certificate; and]
________________________
1 Paragraph (e) applies only when Compliance Certificate is
delivered in respect of fiscal year-end of Borrower.
(f) The Borrower is in compliance with all of the
terms and conditions of the Credit Agreement except as set
forth below.
Described below (or in a separate attachment hereto)
are the exceptions, if any, to paragraphs (d) and (f),
listing in detail, the nature of the conditions or event,
the period during which it has existed and the action which
the Borrower has taken, is taking or proposes to take with
respect to each such condition or event:
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
The foregoing certifications are made and delivered
this ____ day of _______________, 19__.
CALMAT CO.
By:_________________________
Title:
By:_________________________
Title:<PAGE>
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
(This attachment is as of [ ] and pertains
to the period from [ ] (the "Period"; the last day
of the Period is referred to herein as the "Period End Date").
Financial covenant information is provided for only those
covenants which are required to be tested as of the Period End
Date.) All amounts are as of the Period End Date except as
noted.
Capitalized terms used herein without definition shall
have the meanings set forth in the First Amended and Restated
Credit Agreement dated as of June 30, 1994 (such agreement, as it
may be amended, supplemented, restated or otherwise modified from
time to time, the "Credit Agreement") by and among CALMAT CO., a
Delaware corporation (the "Borrower"), the Banks party thereto
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BofA"), as agent for the Banks (the "Agent"). Section
references are to the sections of the Credit Agreement.
A. LIENS (Section 6.1)
1. Aggregate principal amount of
Indebtedness incurred after the
Effective Date secured by Liens
(not including Liens relating to
accounts receivable $ _____________
2. Indebtedness related to sales and
discounts of accounts receivable
in excess of 45% of Initial
Aggregate Book Value $ _____________
3. Aggregate principal amount of
Indebtedness incurred in connection
with sale-leaseback transactions after
the Effective Date secured by Liens $ _____________
4. Aggregate principal amount of
Indebtedness incurred after
the Effective Date secured by Liens
(Lines A1+A2+A3) $
=============
5. Consolidated Net Worth $ _____________
6. Maximum aggregate principal amount
of Indebtedness permitted to be secured
by Liens pursuant to Section 6.1
(Lines A5 x 15%) $
=============
B. INVESTMENTS (Section 6.2)
1. Largest single Investment or group of
Investments related to the same
transaction included in Section 6.2(iv)
during the Period $
=============
2. Maximum amount of any single Investment
or group of Investments related to
the same transaction included in
Section 6.2(iv) $150,000,000
C. MINIMUM CONSOLIDATED NET WORTH (Section 6.3A)
1. Consolidated Net Worth $ _____________
2. Positive Consolidated Net Income, measured
on a cumulative basis for each fiscal
quarter commencing with the fiscal
quarter ending September 30, 1994 $ _____________
3. Minimum Consolidated Net Worth required
pursuant to Section 6.3A ($280,000,000
plus (Line C2 x 50%) $
=============
D. MAXIMUM CONSOLIDATED FUNDED INDEBTEDNESS TO TOTAL
CAPITALIZATION RATIO (Section 6.3B)
1. All obligations and liabilities,
whether current or long-term, for
borrowed money $ _____________
2. That portion of Capital Leases
which are capitalized $ _____________
3. Amount of Contingent Obligations
included in definition of Indebtedness $ _____________
4. Consolidated Funded Indebtedness
(Lines D1+D2+D3) $
=============
5. Consolidated Net Worth $ _____________
6. Total Capitalization (Lines D4+D5) $
=============
7. Consolidated Funded Indebtedness
to Total Capitalization Ratio
(Line D4 divided by Line D6 _____ to 1.00
8. Maximum Consolidated Funded
Indebtedness to Total Capitalization
Ratio pursuant to Section 6.3B .45 to 1.00
E. MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO (Section 6.3C)
1. Consolidated EBIT for the current and
3 preceding fiscal quarters $ _____________
2. Consolidated Interest Expense for
the current and 3 preceding
fiscal quarters $ _____________
3. Consolidated Interest Coverage Ratio
(Line E1 divided by Line E2) _____ to 1.00
4. Minimum Consolidated Interest
Coverage Ratio required pursuant
to Section 6.3C 2.00 to 1.00.
F. FUNDAMENTAL CHANGES (Section 6.4)
1. Largest single acquisition or series of
acquisitions related to the same
transaction included in Section 6.4(i)
during the Period $
=============
2. Maximum amount of any single acquisition
or series of acquisitions related to
the same transaction included in
Section 6.4(i) $150,000,000
G. ASSET SALES (Section 6.5)
1. Book Value of all accounts receivable
sold or discounted through Permitted
Accounts Receivable Financing
Facilities 2 $ _____________
2. Most recent Initial Aggregate Book
Value of accounts receivable at the
time such Permitted Accounts Receivable
Facility was entered to or increased 2 $ _____________
__________________________
2 Need be reported only when a Permitted Accounts Receivable
Financing Facility is in effect.
2 Need be reported only when a Permitted Accounts Receivable
Financing Facility is in effect.
3. Maximum Book Value of accounts
receivable permitted to be sold or
discounted (60% x Line G2) 2 $
=============
4. Maximum Book Value of accounts
receivable permitted to be sold or
discounted by Section 6.5(ii)
(45% x Line G2) 2 $
=============
5. Aggregate Book Value of Asset Sales
in the current and preceding eleven
calendar months $ _____________
6. Aggregate Book Value of Assets Sales
from sales in the current and
preceding eleven calendar months
(excluding Asset Sales permitted
by Section 6.5) $ _____________
7. Asset Sales listed in Line G6 where
proceeds invested or committed to be
invested or used to pay down
Consolidated Funded Indebtedness
within 90 days $ _____________
8. Proceeds listed in Line G7 in a prior
Compliance Certificate as being committed
to be invested within 90 days but that
were not actually invested within
180 days of commitment therefor $ _____________
9. Aggregate Book Value of Asset Sales
counted for Section 6.5(iii) purposes
(Line G6 - Line G7 + Line G8) $
=============
10. Consolidated Net Worth $ _____________
11. Maximum aggregate amount of Asset
Sales permitted pursuant to
Section 6.5(ii) (Line G10 x 15%) $
=============
H. SALES AND SALE-LEASEBACKS (Section 6.6)
1. Aggregate principal amount of
Indebtedness relating to leases $ _____________
_____________________
2 Need be reported only when a Permitted Accounts Receivable
Financing Facility is in effect.
2 Need be reported only when a Permitted Accounts Receivable
Financing Facility is in effect.
2. Aggregate principal amount of
Indebtedness secured by Liens $ _____________
3. Aggregate amount of such
Indebtedness (Lines H1+H2) $ _____________
4. Indebtedness listed in Line H3 where
proceeds invested or committed to be
invested or used to pay down
Consolidated Funded Indebtedness
within 90 days $ _____________
5. Proceeds listed in Line H4 in a prior
Compliance Certificate as being committed
to be invested within 90 days but that
were not actually invested within
180 days of commitment therefor $ _____________
6. Aggregate Indebtedness counted for
Section 6.6(iii) purposes
(Line H3 - Line H4 + Line H5)) $
=============
7. Consolidated Net Worth $ _____________
8. Maximum aggregate amount of such
Indebtedness permitted pursuant
to Section 6.6 (Line H7 x 15%) $
=============
<PAGE>
EXHIBIT V
FORM OF OPINION OF BORROWER'S COUNSEL
Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
and
The Banks listed on Schedule A hereto
Re: First Amended and Restated Credit Agreement dated
as of June 30, 1994
Ladies and Gentlemen:
I am the General Counsel of CALMAT CO. (the
"Borrower"), and have acted in such capacity in connection with
the execution of the First Amended and Restated Credit Agreement
of even date herewith (the "Credit Agreement") among the
Borrower, the Banks listed therein (the "Banks") and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent
("Agent"). This opinion is rendered to you pursuant to Section
3.1C of the Credit Agreement. Capitalized terms used herein
without definition have the meanings ascribed thereto in the
Credit Agreement.
In my capacity as General Counsel, I have examined or
caused to be examined under my supervision, originals or copies
identified to my satisfaction as being true copies, of such
agreements, certificated and other documents as I deemed
necessary for the purpose of rendering this opinion, including
without limitation, the following:
(a) Articles of Incorporation of the Borrower, as
amended to date;
(b) the Bylaws of the Borrower, as amended to date;
(c) certain records of proceedings of the Board of
Directors and the stockholders of the Borrower;
(d) the Credit Agreement; and
(e) the Notes.
The Credit Agreement and the Notes are hereinafter
sometimes referred to as the "Credit Documents".
I have been furnished with evidence of advice
satisfactory to me from the Secretary of State of the State of
Delaware with respect to the corporate good standing of the
Borrower.
In all such examinations, I have assumed the
genuineness of all signatures by each party (other than those of
the Borrower), the authenticity of all documents submitted to me
as originals and the conformity to authentic original documents
of all documents submitted to me as conformed or photostatic
copies. For the purpose of the opinions hereinafter expressed, I
have assumed the due execution and delivery, pursuant to the due
authorization of each document referred to in this opinion by
each party thereto other than the Borrower and that each document
constitutes the valid and binding obligation of each party
thereto (other than the Borrower), enforceable against such party
in accordance with its terms.
For the purpose of rendering this opinion, I have
investigated such questions of law as I have deemed necessary.
On the basis of the foregoing, and in reliance thereon,
and subject to the assumptions, qualifications, exceptions and
limitations expressed herein, I am of the opinion that:
1. The Borrower is duly organized and validly
existing as a corporation in good standing under the laws of the
State of Delaware and has all requisite corporate power and
authority to own and operate its properties, to carry on its
business as now conducted, to execute and deliver the Credit
Documents and to perform its obligations thereunder. The
execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary corporate action on the
part of the Borrower. Each of the Credit Documents has been duly
executed and delivered by the Borrower and constitutes the valid
and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
2. None of the execution and delivery of the Credit
Documents, the consummation of the transactions contemplated
thereby and compliance with the terms and conditions thereof by
the Borrower (A) conflicts with, results in a breach or violation
of, or constitutes a default under, (i) the Articles of
Incorporation or Bylaws of the Borrower, (ii) any order, judgment
of decree of any court or other agency of government binding on
the Borrower, (iii) any Contractual Obligation of the Borrower,
or (iv) any statute, rule or regulation binding on the Borrower,
or (B) results in the creation of any Lien, charge or encumbrance
upon any of the properties or assets of the Borrower under any
agreement referred to in clause (iii) above.
3. Except as disclosed in the Credit Agreement
(including the Schedules delivered pursuant thereto), I am aware
of no action, suit or proceeding, pending against or affecting
the Borrower, at law or in equity, before any court, arbitrator
or administrative or governmental body, (A) in which an
injunction or order has been entered preventing the making of any
of the Loans or (B) which is reasonably likely to materially and
adversely affect (y) the ability of the Borrower to perform its
obligations under the Credit Documents or (z) the financial
condition or results of operations of the Borrower and its
subsidiaries, taken as a whole.
4. No governmental or regulatory consents, approvals,
authorizations, registrations, declarations or filings are
required by the Borrower in connection with (i) the extensions of
credit under the Credit Documents or (ii) the due execution,
delivery and performance by the Borrower of the Credit Documents.
My opinions above as to the validity, binding effect or
enforceability of the agreements referred to therein are subject
to (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting
creditors rights generally, (b) general principles of equity,
including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether such validity, binding effect or enforceability is
considered in a proceeding in equity or at law), (c) public
policy considerations or court decisions which may limit the
rights of the Banks to obtain indemnification or contribution,
(d) the unenforceability under certain circumstances of
provisions to the effect that rights or remedies are not
exclusive, that rights or remedies may be exercised without
notice, that each right or remedy is cumulative and may be
exercised in addition to or with any other right or remedy, that
election of a particular remedy or remedies does not preclude
recourse to one or more other remedies, or that failure to
exercise or delay in exercising rights or remedies will not
operate as a waiver of any such right or remedy, (e) the
unenforceability under certain circumstances of provisions
expressly or by implication waiving broadly or vaguely stated
rights, unknown future rights, defenses to obligations, rights
granted by law or objections to the bringing of an action or
proceeding in a particular jurisdiction, where such waivers are
against public policy or prohibited by law and (f) the
unenforceability under certain circumstances of any provisions
which impose penalties or forfeitures. Certain of the remedies
in the Credit Agreement may be further limited or rendered
unenforceable by other applicable laws. No opinion is expressed
with respect to the effect, under California law, which the
introduction of extrinsic evidence as to the meaning of any
provision of a document may have upon the interpretation of that
document. In my opinion, however, the above qualification,
exceptions and limitations do not make the remedies, taken as a
whole, contained in the Credit Documents, inadequate for the
practical realization of the rights and benefits provided
therein.
My opinions rendered above are based upon review of
only those statutes, rules and regulations which, in my
experience, are normally applicable to transactions of the type
contemplated by the Credit Agreement.
In rendering my opinions above, I have assumed that the
Agent and each Bank is a sophisticated financial institution
capable of evaluating the merits and risks relating to the
transactions contemplated by the Credit Documents, and that each
Bank has been provided access to such information relating to
Borrower as such Bank has requested.
I am admitted to the Bar of the State of California.
In addition, I am generally familiar with the General Corporation
Law as in effect in the State of Delaware and have made such
investigation thereof as I deemed necessary for the purpose of
rendering the opinions expressed herein. This opinion is limited
to the present laws of the aforementioned jurisdictions and the
United States of America, to present judicial interpretations
thereof and to the facts as they exist at the date hereof. I
assume no obligation to revise or supplement this opinion should
the present laws of such jurisdictions be changed by legislative
action, judicial decision or otherwise. This opinion is rendered
as of the date hereof, and I express no opinion as to, and
disclaim any undertaking or obligation to update this opinion in
respect of, changes or circumstances or events which occur
subsequent to this date.
This opinion is rendered solely for your benefit in
connection with the execution and delivery of the Credit
Documents and may not be relied upon by any other person or by
you in any other context for any other purpose, except that it
may be relied upon by the Banks which may be added pursuant to
Section 9.7 of the Credit Agreement.
<PAGE>
SCHEDULE "A" TO OPINION OF COUNSEL
Bank of America National Trust and Savings Association.
Chemical Bank
First National Bank of Chicago
NationsBank of Texas, N.A.
Wells Fargo Bank, N.A.
<PAGE>
EXHIBIT VI
FORM OF COMPETITIVE BID REQUEST
(AGENT AUCTION ONLY)
___________________, 1994
Bank of America National Trust
and Savings Association,
as Agent
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Global Agency #5596
Ladies and Gentlemen:
Reference is made to the First Amended and Restated
Credit Agreement dated as of June 30, 1994 (as amended,
supplemented, restated or otherwise modified from time to time,
the "Credit Agreement", the terms defined therein being used
herein as therein defined) by and among CALMAT CO. (the
"Borrower"), the Banks party thereto and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as agent for the Banks (in such
capacity, the "Agent").
Borrower hereby requests an Agent Auction for Bid
Loans. In connection therewith, this is a Competitive Bid
Request for Bid Loans pursuant to Section 2.2 of the Credit
Agreement as follows:
(i) The borrowing date (which shall be a Business Day)
of the proposed Bid Borrowing is __________________, 1994.
(ii) The aggregate amount of the proposed Bid Borrowing
is $ __________________.
(iii) The proposed Bid Borrowing to be made pursuant to
Section 2.2 shall be comprised of [Eurodollar Rate] [Absolute
Rate] Bid Loans.
(iv) The Interest Period[s] for the Bid Loans comprised
in the Borrowing shall be_____________, [____________________]
and [______________________].
CALMAT CO.
By: ______________________________
Title: ___________________________
<PAGE>
EXHIBIT VII
FORM OF INVITATION FOR COMPETITIVE BIDS
[AGENT*] [BORROWER**] AUCTION
VIA FACSIMILE
To the Banks Listed on Schedule A hereto:
Ladies and Gentlemen:
Reference is made to that certain First Amended and
Restated Credit Agreement dated as of June 30, 1994 (as amended,
supplemented, restated, or otherwise modified from time to time,
the "Credit Agreement") among CALMAT CO. (the "Borrower"), the
Banks party thereto and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as agent for the Banks (in such capacity,
the "Agent").
Pursuant to Section 2.2B(iii) of the Credit Agreement,
you are hereby invited to submit offers to make Bid Loans to the
Borrower based on the following specifications:
1. Borrowing date: ________________, 1994;
2. Aggregate amount requested by the Borrower
$________________;
3. [Eurodollar Rate Bid Loan] [Absolute Rate Bid
Loan]; and
4. Interest Period[s]: ____________, [____________]
and [______________].
All Competitive Bids must be substantially in the form
of Exhibit VIII to the Credit Agreement and must be received by
[the Agent*] [the Borrower**] no later than 7:00 A.M. (San
Francisco time) on ________________, 1994.
[BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as the Agent]*
[CALMAT CO.]**
By: __________________________
Title: ________________________
* If an Agent Auction
** If a Borrower Auction
<PAGE>
SCHEDULE A
TO
INVITATION FOR COMPETITIVE BIDS
[List Banks]
<PAGE>
EXHIBIT VIII
FORM OF COMPETITIVE BID
__________________, 1994
[Bank of America National Trust
and Savings Association,
as Agent
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Global Agency #5596]] 3
[CALMAT Co.
3200 San Fernando Road
Los Angeles, CA 90065
Attention: Edward T. Kelly
Senior Vice President, Treasurer
and Chief Account Officer] 4
Ladies and Gentlemen:
Reference is made to the First Amended and Restated
Credit Agreement dated as of June 30, 1994 (as amended,
supplemented, restated or otherwise modified from time to time,
the "Credit Agreement", the terms defined therein being used
herein as therein defined) by and among CALMAT CO. (the
"Borrower"), the Banks party thereto and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as agent for Banks (in such
capacity, the "Agent").
In response to the Competitive Bid Request of the
Borrower dated ________________, 1994 and in accordance with
Section 2.2B(iii) of the Credit Agreement, the undersigned Bank
offers to make Bid Loan[s] thereunder in the following principal
amount[s] at the following interest rates for the following
Interest Period[s]:
Date of Borrowing: ____________________________, 1994
Aggregate Maximum Bid Amount: $_____________
I. Interest Period __________________________
_____________________________
3 If an Agent Auction
4 If a Borrower Auction
I. A. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
B. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
C. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
II. Interest Period
D. A. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
B. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
C. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
III. Interest Period
A. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
B. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
C. Principal Amount:
Interest: _________________
[Absolute Rate: _______%] or
[Eurodollar Rate Bid Margin: +/-_______%]
[NAME OF Bank]
By: _______________________
Title: ____________________
<PAGE>
EXHIBIT IX
FORM OF BID LOAN NOTE
June 30, 1994
FOR VALUE RECEIVED, the undersigned, a corporation (the
"Borrower"), hereby promises to pay to the order of [1] (the
"Bank") the aggregate unpaid principal amount of each Bid Loan
made by the Bank to the Borrower pursuant to the Credit Agreement
described below on the last day of the Interest Period to which
such Bid Loan relates.
The Borrower further promises to pay to the order of
the Bank interest on the unpaid principal amount of each such Bid
Loan from time to time outstanding at the rate or rates per annum
and on the dates all as set forth on Schedule A attached hereto,
or as otherwise provided in the Credit Agreement.
This Bid Loan Note is one of the "Bid Loan Notes"
referred to in the Credit Agreement and is issued pursuant to,
and is entitled to the benefits of, the First Amended and
Restated Credit Agreement dated as of June 30, 1994 among the
Borrower, the Banks parties thereto and Bank of America National
Trust and Savings Association, as agent for Banks (in such
capacity, the "Agent") (such agreement, as it may be amended,
supplemented, restated or otherwise modified from time to time,
the "Credit Agreement"). Reference is made to the Credit
Agreement for provisions for the prepayment of Bid Loans
evidenced hereby prior to the maturity hereof and the
acceleration of the maturity hereof upon the happening of certain
stated events. Terms defined in the Credit Agreement shall have
the same meanings herein.
In the case of a Bid Loan evidenced hereby that was
made through an Agent Auction, both principal and interest are
payable in lawful money of the United States of America to Bank
_________________________
1 Insert name of Lender in capital letters.<PAGE>
of America National Trust and Savings Association, as Agent for
the Bank, by deposit of such funds to the Agent's Account No.
12330-15415 re: CalMat Co., Attention: Global Agency #5596,
maintained at BofA, Global Agency, ABA Number 1210-0035-8-BKAMER-
SF, or at such other account as the Agent may from time to time
designate by notice to the Borrower, in immediately available
funds.
In the case of a Bid Loan evidenced hereby that was
made through a Borrower Auction, both principal and interest are
payable in lawful money of the United States of America to Bank
at such account as Bank may from time to time designate by notice
to the Borrower, in immediately available funds.
The Bid Loans made by the Bank shall be evidenced by
this Bid Loan Note and the Bank shall endorse on Schedule A
annexed hereto, the date, amount, rate of interest per annum and
maturity of each Bid Loan made by it and the amount of each
payment of principal and interest made by the Borrower with
respect hereto. The Bank is irrevocably authorized by the
Borrower to endorse this Bid Loan Note and the Bank's record
shall be conclusive absent manifest error; provided, however,
that the failure of the Bank to make, or an error in making, a
notation thereon with respect to any Bid Loan shall not limit or
otherwise affect the obligations of the Borrower hereunder or
under the Credit Agreement.
The Borrower and endorsers of this Note hereby
expressly waive diligence, presentment, demand, notice, protest
and all other demands and notices of every kind in connection
with the delivery, acceptance, performance, default or
enforcement of this Bid Loan Note and the Credit Agreement, and
an action for amounts due hereunder or thereunder shall
immediately accrue.
THIS BID LOAN NOTE SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
CALMAT CO.
By:_______________________________
Title:
By:_______________________________
Title:
<PAGE>
Schedule A
GRID TO BID LOAN NOTE
==============================================================================
Disbursement Amount of Applicable Maturity Principle Interest
Date of Bid Loan/ Bid Loan Interest Date Payment & Payment
Made through: & Date & Date
Agent Auction Paid Paid
Borrower Auction
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
==============================================================================
<PAGE>
EXHIBIT X
FORM OF COMMITTED LOAN NOTE
$[1]
June 30, 1994
FOR VALUE RECEIVED, CALMAT CO., a Delaware corporation
(the "Borrower"), promises to pay to the order of [2] ("Payee"),
on or before the Maturity Date, the lesser of (x) [3] ($[1]) and
(y) the unpaid aggregate principal amount of all advances made by
Payee to the Borrower as committed Loans under the Credit
Agreement referred to below.
The Borrower also promises to pay interest on the
unpaid principal amount hereof until paid at the rates, at the
times and from the dates which shall be determined in accordance
with the provision of that certain First Amended and Restated
Credit Agreement dated as of June 30, 1994 (such agreement, as
it may be amended, supplemented, restated or otherwise modified
from time to time, being herein called the "Credit Agreement";
capitalized terms used herein without definition shall have the
meanings assigned those terms in the Credit Agreement), by and
among the Borrower, the lenders party thereto ("Banks") and Bank
of America National Trust and Savings Association ("BofA"), as
agent for the Banks ("Agent").
This Note is one of the Borrower's "Committed Loan
Notes" in the aggregate principal amount of $125,000,000 and is
issued pursuant to and entitled to the benefits of the Credit
Agreement to which reference is hereby made for a more complete
statement of the terms and conditions under which the Loans
evidenced hereby were made and are to be repaid.
Both principal and interest are payable in lawful money
of the United States of America to the Agent by deposit of such
funds, in immediately available funds, to the Agent's Account
Number 12330-15415, re: CalMat Co., Attention: Global Agency
#5596, maintained at BofA, Global Agency, ABA Number 1210-0035-8-
____________________
1 Insert in numbers the principal amount of Lender's Pro Rata
Share of the Commitments.
2 Insert name of Lender in capital letters.
3 Insert in words the principal amount of Lender's Pro Rata
Share of the Commitments.
1 Insert in numbers the principal amount of Lender's Pro Rate
Share of the Commitments.<PAGE>
BKAMER-SF, or at such other account as the Agent may from time to
time designate by notice to the Borrower. Until notified in
writing of the transfer of this Note, the borrower and the Agent
shall be entitled to deem Payee, or such Person who has been so
identified by the transferor in writing to the Borrower and the
Agent as the holder of this Note, as the owner and holder of this
Note.
Each of Payee and any subsequent holder of this Note
agrees by its acceptance hereof that before disposing of this
Note or any part hereof it will make a notation hereon of all
principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the
failure to make notation of any payment made on this Note shall
not limit or otherwise affect the obligation of the Borrower
hereunder with respect to payments of principal or interest on
this Note.
Whenever any payment on this Note shall be stated to be
due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of
interest on this Note; provided; however, that if the day on
which any payment relating to a Eurodollar Rate Loan is due is
not a Business Day but is a day of the month after which no
further Business Day occurs in such month, then the due date
thereof shall be the next preceding Business Day.
This Note is subject to mandatory prepayment as
provided in Section 2.5B of the Credit Agreement and to
prepayment at the option of the Borrower as provided in Section
2.5A of the Credit Agreement.
This Note is subject to restriction on transfer or
assignment as provided in Sections 9.6 and 9.7 of the Credit
Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid
balance of the principal amount of this Note may become, or may
be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in
the manner provided in the Credit Agreement.
No reference herein to the Credit Agreement and no
provision of this Note or the Credit Agreement shall alter or
impair the obligation of the Borrower, which is absolute and
unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, and in the currency herein
prescribed.
The Borrower and endorsers of this Note hereby consent
to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment,
protest, demand and notice of every kind.
IN WITNESS WHEREOF, the Borrower has caused this Note
to be executed and delivered by its duly authorized officer, as
of the day and year and the place first above written.
CALMAT CO.
By: _______________________________
Title:
By: _______________________________
Title:
<PAGE>
TRANSACTIONS ON
COMMITTED LOAN NOTE
Outstanding
Amount of Principal
Principal Paid Balance Notation
Date This Date This Date Made by
- - ---- -------------- ------------ ---------
<PAGE>
SCHEDULE A
COMMITMENTS
AND PRO RATA SHARES
<TABLE>
<CAPTION>
Pro Rata
Bank Commitment Share
---- ---------- --------
<S> <C> <C>
Bank of America National 40,000,000 32%
Trust and Savings
Association
Chemical Bank 30,000,000 24%
First National Bank of 15,000,000 12%
Chicago
NationsBank of Texas, N.A. 20,000,000 16%
Wells Fargo Bank, N.A. 20,000,000 16%
============ ====
TOTAL $125,000,000 100%
</TABLE>
<PAGE>
SCHEDULE B
LENDING OFFICES
CALMAT CO.
3200 San Fernando Road
Los Angeles, CA 90065
Attention: Edward T. Kelly
Senior Vice President, Treasurer
and Chief Account Officer
Telephone: (213) 258-2777
Facsimile: (213) 259-8159
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Bank of America National Trust
and Savings Association
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: David M. Terrance
Vice President
Telephone: (415) 622-7011
Facsimile: (415) 622-4894
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
Domestic and Offshore Lending Office:
1850 Gateway Boulevard, Fourth Floor
Concord, California 94520
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
555 Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Yvonne Dennis
Vice President
Credit Products #5618
Telephone: (213) 228-2666
Facsimile: (213) 228-2756
<PAGE>
CHEMICAL BANK
Notices and Domestic and Offshore Lending Office:
270 Park Avenue
New York, NY 10017
Attention: David J. Corcoran
Telephone: (212) 270-5032
Facsimile: (212) 270-1403
with a copy to:
270 Park Avenue
New York, NY 10017
Attention: Abigail Garcia
Telephone: (212) 270-5425
Facsimile: (212) 818-1456
FIRST NATIONAL BANK OF CHICAGO
Notices and Domestic and Offshore Lending Office:
The First National Bank of Chicago
One First National Plaza, 0634, 1-10
Chicago, IL 60670
Attention: Marilyn Fisher
Telephone: (312) 732-7172
Facsimile: (312) 732-4840
with a copy to:
777 South Figueroa St.
Fourth Floor
Los Angeles, CA 90017-5800
Attention: James P. Moore
Senior Corporate Banker
Telephone: (213)
Facsimile: (213)
NATIONSBANK OF TEXAS, N.A.
Notices and Domestic and Offshore Lending Office:
444 S. Flower St., Suite #1500
Los Angeles, CA 90071-2901
Attention: Andrea Collias
Assistant Vice President
Telephone: (213) 236-4911
Facsimile: (213) 624-5815
WELLS FARGO BANK, N.A.
Domestic and Offshore Lending Office:
420 Montgomery Street
San Francisco, CA 94163
Attention: David A. Neumann
Vice President
MAC 0101-091
Telephone: (415)
Facsimile: (415)
<PAGE>
SCHEDULE C
ACTIVE SUBSIDIARIES OF CALMAT CO.
100% owned and California corporation, unless otherwise
indicated)
Allied Concrete & Materials Co. (Arizona)
Allied Concrete, Inc. (Arizona)
CalMat Co. of Arizona (Arizona)
CalMat Co. of New Mexico (New Mexico)
CalMat Land Co.
CalMat of Central California
CalMat Properties Co.
CC Plaza Co.
Mission Valley Development Co.
River Vista Development Co.
Coast Asphalt, Inc. (Delaware)
Hidden Valley Coal Company (Utah)
Huntmix, Inc.
Kirst Construction Co., Inc. (50% owned through Crystal
partnership)
Azusa Rock, Inc. (50% owned through Crystal
partnership)
Moreno Valley Sand & Gravel, Inc.
Palomar Transit Mix Co.
Reliance Transport Co.
Rio Norte Este Co.
River Bend Corp.
Sanger Rock and Sand
Sloan Canyon Sand Co.
Western Thermal Soils Co.
<PAGE>
SCHEDULE C
INACTIVE SUBSIDIARIES OF CALMAT CO.
(California corporation unless otherwise indicated)
Albuquerque Gravel Products Co. (New Mexico)
Bakersfield Ready Mix, Inc.
California Materials Company
Carroll Canyon Centre Co. (CalMat Properties Co.'s Subsidiary)
Coast Asphalt, Inc.
Conrock Co.
Conrock Co. (Delaware)
Conrock Property Development Corp.
Consolidated Rock Products Co.
Consolidated Rock Products Co. (Delaware)
Corona Ready Mix Co.
Industrial Asphalt, Inc. (Coast Asphalt, Inc.'s Subsidiary)
Oceanside Ready Mix Co.
Reliance Land Co.
Rio Vista Hotel Co. (CalMat Properties Co.'s Subsidiary)
San Diego Consolidated Co.
San Diego Rock Products Co.
San Diego Transit Mixed Concrete Co.
Sweetwater Aggregates Co.
Triangle Rock Products, Inc.
<PAGE>
SCHEDULE D
CalMat Co. & Subsidiaries
Disclosure of Employee Benefit Plans providing Benefits
of Retirees Except as Required Under Section 4980B of
the Internal Revenue Code
Borrower maintains an Employee Benefit Plan that provides
health and welfare benefits in the form of health and life
insurance to approximately 160 non-union retirees.
<PAGE>
SCHEDULE E
CalMat Co. & Subsidiaries
Environmental Matters
<PAGE>
SCHEDULE F
TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
dated as of June 30, 1994
among
CALMAT CO.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTIES THERETO
1. Matters set forth in Item 7, "Management's Discussion and
Analysis of Financial Condition and Results of Operations",
under the caption "Environmental Matters", appearing at page
15 of the Company's Annual Report on Form 10-K for the year
ending December 31, 1993 (the "1993 10-K").
2. Matters set forth in Item 3, "Legal Proceedings", appearing at
pages 6 and 7 of the 1993 10-K.
