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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
ANNUAL REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the Fiscal Year Ended
DECEMBER 31, 1993
Commission File Number 1-8889
MORRISON KNUDSEN CORPORATION
A Delaware Corporation
IRS Employer Identification No. 82-0393735
MORRISON KNUDSEN PLAZA, BOISE, IDAHO 83729
208/386-5000
SECURITIES REGISTERED AND NUMBER OF REGISTRANT'S
COMMON SHARES OUTSTANDING
At March 18, 1994, 33,022,099 shares of registrant's $1.67 par value common
stock (registered pursuant to Securities Exchange Act Section 12(b) on the New
York Stock Exchange and the Pacific Stock Exchange, Inc.) were outstanding
(excluding 421,079 shares held in treasury and including 516,363 unallocated
shares of common stock in the Employee Stock Ownership Plan Trust, accounted
for as treasury stock). The registrant has no securities registered under
Securities Exchange Act Section 12(g).
COMPLIANCE WITH REPORTING REQUIREMENTS
The registrant 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 and
has been subject to such filing requirements for the past 90 days.
Disclosure of delinquent filers pursuant to Item 405 of Regulation S-K required
under Item 10 is contained in the registrant's definitive proxy statement
incorporated by reference in Part III of this Form 10-K.
AGGREGATE MARKET VALUE OF VOTING STOCK HELD BY NONAFFILIATES
At March 18, 1994, the aggregate market value of the registrant's voting common
stock held by nonaffiliates of the registrant based on the New York Stock
Exchange closing price on March 18, 1994 for shares traded on the exchange was
approximately $900,954,200 (excluding $23,664,600 market value of 516,363
unallocated shares of common stock held by trustee for registrant's Employee
Stock Ownership Plan Trust and 328,801 shares, which are assumed to be held by
affiliates of the registrant for the purposes of this calculation).
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive proxy statement, dated April 4, 1994,
for the annual meeting of stockholders on May 12, 1994 are incorporated by
reference into Part II and Part III of this Form 10-K.
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MORRISON KNUDSEN CORPORATION
AMENDMENT TO ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1993
The registrant is amending its Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 to include the following exhibits:
4.2 The registrant's amended credit agreement totalling $150 million
with the following financial institutions: Morgan Guaranty Trust
Company of New York, Bank of America National Trust and Savings
Association, Continental Bank N.A., Deutsche Bank AG, Society
National Bank, National Westminster Bank PLC.
4.4 The registrant's amended standby letter of credit and reimbursement
agreement, dated August 4, 1992 among the registrant and Bank of
America National Trust and Saving Association, agent, and other
financial institutions with combined commitments of the banks in the
aggregate amount of $190 million.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to its Annual Report
on Form 10-K for the fiscal year ended December 31, 1993, to be signed on its
behalf by the undersigned, thereunto duly authorized on April 13, 1995.
Morrison Knudsen Corporation
/s/ M. E. Howland
By --------------------------------------------
M. E. Howland, Vice President and Controller
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Exhibit 4.2
EXECUTION COPY
$150,000,000
CREDIT AGREEMENT
dated as of
March 31, 1994
among
Morrison Knudsen Corporation,
a Delaware Corporation,
Morrison Knudsen Corporation,
an Ohio Corporation,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
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TABLE OF CONTENTS*
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . 14
1.03 Types of Borrowings . . . . . . . . . . . 15
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments . . . . . . . . . . . . . . . 15
2.02 Notice of Committed Borrowing . . . . . . 16
2.03 Money Market Borrowings . . . . . . . . . 17
2.04 Notice to Banks; Funding of Loans . . . . 21
2.05 Notes . . . . . . . . . . . . . . . . . . 22
2.06 Maturity of Loans . . . . . . . . . . . . 23
2.07 Interest Rates . . . . . . . . . . . . . 23
2.08 Fees . . . . . . . . . . . . . . . . . . 27
2.09 Optional Termination or
Reduction of Commitments . . . . . . . . 27
2.10 Mandatory Termination of Commitments . . 27
2.11 Optional Prepay . . . . . . . . . . . . . 27
2.12 General Provisions as to Payments . . . . 28
2.13 Funding Losses . . . . . . . . . . . . . 29
2.14 Computation of Interest and Fees . . . . 29
ARTICLE III
CONDITIONS
SECTION 3.01 Closing . . . . . . . . . . . . . . . . . 29
3.02 Borrowings . . . . . . . . . . . . . . . 30
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* The Table of Contents is not a part of this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power . . . . . . 31
4.02 Corporate and Governmental
Authorization; No Contravention . . . . . 31
4.03 Binding Effect . . . . . . . . . . . . . 31
4.04 Financial Information . . . . . . . . . . 31
4.05 Litigation . . . . . . . . . . . . . . . 32
4.06 Compliance with ERISA . . . . . . . . . . 32
4.07 Environmental Matters . . . . . . . . . . 33
4.08 Taxes . . . . . . . . . . . . . . . . . . 33
4.09 Subsidiaries . . . . . . . . . . . . . . 33
4.10 Not an Investment Company . . . . . . . . 33
ARTICLE V
COVENANTS
SECTION 5.01 Information . . . . . . . . . . . . . . . 34
5.02 Payment of Obligations . . . . . . . . . 36
5.03 Maintenance of Property; Insurance . . . 36
5.04 Maintenance of Existence . . . . . . . . 36
5.05 Compliance with Laws . . . . . . . . . . 36
5.06 Inspection of Property,
Books and Records . . . . . . . . . . . . 37
5.07 Current Ratio . . . . . . . . . . . . . . 37
5.08 Consolidated Indebtedness to
Consolidated Tangible Net Worth . . . . . 37
5.09 Consolidated Debt to
Consolidated Tangible Net Worth . . . . . 37
5.10 Interest Coverage . . . . . . . . . . . . 37
5.11 Minimum Consolidated Tangible
Net Worth . . . . . . . . . . . . . . . . 37
5.12 Negative Pledge . . . . . . . . . . . . . 37
5.13 Consolidations, Mergers and
Sales of Assets . . . . . . . . . . . . . 39
5.14 Use of Proceeds . . . . . . . . . . . . . 40
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default . . . . . . . . . . . . 40
6.02 Notice of Default . . . . . . . . . . . . 43
ARTICLE VII
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THE AGENT
SECTION 7.01 Appointment and Authorization . . . . . . 43
7.02 Agent and Affiliates . . . . . . . . . . 43
7.03 Action by Agent . . . . . . . . . . . . . 43
7.04 Consultation with Experts . . . . . . . . 44
7.05 Liability of Agent . . . . . . . . . . . 44
7.06 Indemnification . . . . . . . . . . . . . 44
7.07 Credit Decision . . . . . . . . . . . . . 44
7.08 Successor Agent . . . . . . . . . . . . . 45
7.09 Agent's Fee . . . . . . . . . . . . . . . 45
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair . . . . . . . . 45
8.02 Illegality . . . . . . . . . . . . . . . 46
8.03 Increased Cost and Reduced Return . . . . 47
8.04 Taxes . . . . . . . . . . . . . . . . . . 48
8.05 Base Rate Loans Substituted for
Affected Fixed Rate Loans . . . . . . . . 50
8.06 Substitution of Bank . . . . . . . . . . 51
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF MK-OHIO
SECTION 9.01 Corporate Existence and Power . . . . . . 51
9.02 Corporate and Governmental
Authorization; Contravention . . . . . . 51
9.03 Binding Effect . . . . . . . . . . . . . 51
ARTICLE X
GUARANTY
SECTION 10.01 The Guarantees . . . . . . . . . . . . . 51
10.02 Guarantees Unconditional . . . . . . . . 52
10.03 Discharge Only Upon Payment
In Full; Reinstatement In
Certain Circumstances . . . . . . . . . . 53
10.04 Waiver by the Borrowers . . . . . . . . . 53
10.05 Subrogation . . . . . . . . . . . . . . . 53
10.06 Stay of Acceleration . . . . . . . . . . 53
10.07 Limit of Liability . . . . . . . . . . . 53
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Notices . . . . . . . . . . . . . . . . . 54
11.02 No Waivers . . . . . . . . . . . . . . . 54
11.03 Expenses; Indemnification . . . . . . . . 54
11.04 Sharing of Set-Offs . . . . . . . . . . . 55
11.05 Amendments and Waivers . . . . . . . . . 56
11.06 Successors and Assigns . . . . . . . . . 56
11.07 Collateral . . . . . . . . . . . . . . . 58
11.08 Governing Law; Submission to Juris-
diction . . . . . . . . . . . . . . . . . 58
11.09 Counterparts; Integration;
Effectiveness . . . . . . . . . . . . . . 58
11.10 WAIVER OF JURY TRIAL . . . . . . . . . . 58
Pricing Schedule
Exhibit A - Note
Exhibit B - Extension Agreement
Exhibit C - Money Market Quote Request
Exhibit D - Invitation for Money Market Quotes
Exhibit E - Money Market Quote
Exhibit F - Opinion of counsel for the Borrowers
Exhibit G - Opinion of Special Counsel for the Agent
Exhibit H - Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of March 31, 1994 among MORRISON KNUDSEN
CORPORATION, a Delaware corporation, MORRISON KNUDSEN CORPORATION, an Ohio
corporation, the BANKS listed on the signature pages hereof and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise,
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending office.
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"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 11.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 11.06(c), and their
respective successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a Base
Rate Loan in accordance with the applicable Notice of Committed Borrowing or
pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means the Company or MK-Ohio, each in its respective dual
capacity as borrower and guarantor under this Agreement and their respective
successors in such capacities, as the context may require, and "Borrowers"
means both of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
"Capitalized Lease" means any lease which is or is required to be
capitalized on the balance sheet of the lessee in accordance with generally
accepted accounting principles.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan in
accordance with the applicable Notice of Committed Borrowing,
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means Bank of America National Trust and Savings
Association, Continental Bank
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N.A., Society National Bank and Morgan Guaranty Trust Company of New York.
"Closing Date" means the date on or after the Effective Date on which
the Agent shall have received the documents specified in or pursuant to Section
3.01.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount
may be reduced from time to time pursuant to Section 2.09.
"Committed Loan" means a loan made by a Bank pursuant to Section 2.01.
"Company" means Morrison Knudsen Corporation, a Delaware corporation,
and its successors.
"Company's 1992 Form 10-K" means the Company's annual report on Form
10-K for 1992, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Company's Latest Form 10-Q" means the Company's quarterly report on
Form 10-Q for the quarter ended September 30, 1993, as filed with the
securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Consolidated Adjusted EBIT" means, for any period, the sum of (i)
Consolidated Operating Income for such period plus (ii) to the extent deducted
in determining such Consolidated Operating Income, the sum of Consolidated
Interest Expense and the consolidated provision for income taxes for such
period.
"Consolidated Current Assets" means at any date the consolidated
current assets of the Company and its Consolidated Subsidiaries determined as
of such date.
"Consolidated Current Liabilities" means at any date the consolidated
current liabilities of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Debt" means at any date the Debt of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date,
"Consolidated Indebtedness" means at any date the Indebtedness of the
Company and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
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"Consolidated Interest Expense" means, for any period, the interest
expense of the company and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Net Earnings" means the net income of the Company and
its Subsidiaries determined on a consolidated basis for the Company and its
Subsidiaries in accordance with generally accepted accounting principles.
"Consolidated Operating Income" means for any period the consolidated
net income of the Company and its Consolidated Subsidiaries for such period
determined in accordance with generally accepted accounting principles less any
gains on the sale or other disposition of investments or any extraordinary or
nonrecurring items of income to the extent that the aggregate of all such gains
and extraordinary or nonrecurring items of income exceeds the aggregate of
losses on such sales or other dispositions and extraordinary or nonrecurring
charges; provided, that the net gain on sale of fixed assets included in
Consolidated Operating Income shall be limited to $10,000,000 in any four-
quarter period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated in accordance with generally
accepted accounting principles with those of the Company in its consolidated
financial statements if such statements were prepared as of such date; provided
that any Consolidated Subsidiary which ceases to be a Consolidated Subsidiary
solely because it is classified as a discontinued operation shall be deemed to
be a Consolidated Subsidiary so long as it remains a Subsidiary.
"Consolidated Tangible Net Worth" means at any date (a) consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries minus (b)
the sum of any write-up of the value of any assets after September 30, 1993,
treasury stock, unamortized debt discount and expense, unamortized deferred
charges, trademarks, trade names, patents, patent applications, copyrights,
goodwill, service marks, anticipated future benefit of tax loss carryforwards,
organization or developmental expenses and other intangible assets, all
determined on a consolidated basis for the Company and its Consolidated
Subsidiaries in accordance with generally accepted accounting principles.
"Debt" of any Person means, without duplication, all Indebtedness of
such Person, except and excluding obligations and liabilities included in the
definition of "Indebtedness" solely and exclusively because of the
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application of subparagraphs (i)(b), (ii) or (iv) of the definition thereof.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.07(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 11.09.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to
emissions, discharges or
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releases Of pollutants, contaminants, Hazardous Substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or Affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or Affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices of
Bank of America National Trust and Savings Association, Continental Bank N.A.,
Society National Bank and Morgan Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest
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1/100th of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Domestic Business Day next succeeding such day, provided
that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if no such rate is so published on such next succeeding Domestic Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to
Morgan Guaranty Trust Company of New York on such day on such transactions as
determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"Guaranty Obligations" of any Person means, without duplication all
obligations and liabilities of such Person, absolute or contingent, due or to
become due, now existing or hereafter arising, under: (i) any guaranty or other
instrument, document or agreement whereby such Person becomes or is a guarantor
or surety of, or otherwise becomes or is responsible in any manner (whether by
agreement to purchase any obligations, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services, or otherwise) with
respect to, any undertaking of any other Person, or (ii) any agreement to
purchase stock of, to make any other equity investment in, or to make advances
to, any other Persons; excluding, however, (x) the endorsement, in the ordinary
course of collection, of instruments payable to it or its order, and (y) any
guaranty of performance entered into in the ordinary course of business and not
involving any Lien on any asset of the Company or any Subsidiary.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indebtedness" of any Person means, without duplication:
(i) any obligation of such Person for borrowed money, including,
without limitation, (a) any obligation of such Person evidenced by bonds,
debentures, notes or other similar debt instruments, (b) any Indebtedness
guaranteed by such Person and any
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other Guaranty Obligations of such Person, (c) any non-contingent
reimbursement obligation in respect of any letter of credit and (d) any
obligation for borrowed money which is non-recourse to such Person but
which is secured by a Lien on any asset of such Person (limited, however,
to the lesser of (x) the amount of the debt secured, or (y) the greater of
fair market or book value of the assets subject to the Lien);
(ii) any obligation of such Person for the deferred purchase price
of any property or services, except Trade Accounts Payable;
(iii) any obligation of such Person as lessee under a Capitalized
Lease; and
(iv) any Indebtedness of any other Person or entity secured by a
Lien on any asset of such Person, whether or not such Indebtedness is
assumed by such Person (limited, however, to the lesser of (x) the amount
of the debt secured, or (y) the greater of fair market or book value of the
assets subject to the Lien),
For all purposes of this Agreement:
(a) the Indebtedness of any Person shall include a portion of the
Indebtedness of any partnership or joint venture in which such Person
is a general partner or a joint venturer equal to a ratable share of such
Indebtedness based on respective percentage ownership or equity interests
of such Person and other general partners or joint venturers;
(b) in the instance of non-recourse debt of a partnership or joint
venture, the Indebtedness of any Person shall be limited to the lesser
of the ratable share described in (a) above or such Person's total equity
interest (whether paid in capital, partnership contribution, capital
surplus or partnership profits) in such partnership or joint venture; and
(c) in the instance of non-recourse debt of a New Subsidiary, the
Indebtedness of any Person shall be limited to the lesser of (x) a ratable
share of such Indebtedness based on respective percentage ownership or
equity interest of the Company (direct or indirect) and other equity
owners of such New Subsidiary, or (y) the Company's direct or indirect
total equity interest (whether paid in capital, retained earnings, capital
surplus or other book equity) in such New Subsidiary.
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"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter (or ending 21 days thereafter, if each
Reference Bank shall have advised the Agent that deposits in dollars for such
periods (in an amount approximately equal to the Euro-Dollar Loan of such
Reference Bank to which such period would apply) are being offered by such
Reference Bank in the London interbank market), as the Borrower may elect in
the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) in the case of the Loans of any Bank, any Interest Period
which would otherwise end after the Termination Date for such Bank shall
end on the Termination Date for such Bank;
(2) with respect to each CD Borrowing, the period commencing on the
date of such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) in the case of the Loans of any Bank, any Interest Period
which would otherwise end after the Termination Date for such Bank shall
end on the Termination Date for such Bank;
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
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<PAGE> 15
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) in the case of the Loans of any Bank, any Interest Period
which would otherwise end after the Termination Date for such Bank shall
end on the Termination Date for such Bank;
(4) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of months
thereafter as the Borrower may elect in accordance with Section 2.03; provided
that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) in the case of the Loans of any Bank, any Interest Period
which would otherwise end after the Termination Date for such Bank shall
end on the Termination Date for such Bank; and
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 30 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) in the case of the Loans of any Bank, any Interest Period
which would otherwise end after the Termination Date for such Bank shall
end on the Termination Date for such Bank,
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
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<PAGE> 16
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means any mortgage, pledge, hypothecation, judgment lien or
similar legal process, title retention lien, or other lien or security
interest, including, without limitation, the interest of a vendor under any
conditional sale or other title retention agreement and the interest of a
lessor under any Capitalized Lease.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Indebtedness" means Indebtedness of the Company and/or one
or more of its Subsidiaries (calculated without duplication) arising in one or
more related or unrelated transactions, in an aggregate principal or face
amount exceeding $15,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"MK-Ohio" means Morrison Knudsen Corporation, an Ohio corporation,
and its successors.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or Affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of
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<PAGE> 17
such Bank shall be deemed to refer to either or both of such offices, as the
context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001 (a) (3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"New Subsidiary" means a corporate Subsidiary (direct or indirect) of
the Company, which has (i) been incorporated after the date of this Agreement,
and (ii) has been identified and designated as a New Subsidiary by the Company
to the Banks in writing.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
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<PAGE> 18
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank to either
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66-2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66-2/3% of the aggregate unpaid
principal amount of the Loans.
"S&P" means Standard & Poor's Corporation.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person;
unless otherwise specified, "Subsidiary" means a Subsidiary of the Company.
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<PAGE> 19
"Termination Date" means March 31, 1997, or, in the case of any Bank,
such later date to which the Termination Date for such Bank shall have been
extended pursuant to Section 2.01(b), or, if such day is not a Euro-Dollar
Business Day, the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
Termination Date shall be the next preceding Euro-Dollar Business Day.
"Trade Accounts Payable" of any Person means trade accounts payable of
such Person with a maturity of not greater than 90 days incurred in the
ordinary course of such Person's business.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
SECTION 1.02, Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Company notifies the Agent that the Company
wishes to amend any covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or
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<PAGE> 20
if the Agent notifies the Company that the Required Banks wish to amend
Article V for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a Borrower pursuant to
Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans) or by reference to the provisions of Article II
under which participation therein is determined (i.e., a "Committed Borrowing"
is a Borrowing under Section 2.01 in which all Banks participate in proportion
to their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.03 in which the Bank participants are determined on the basis of
their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments.
(a) Commitments to Lend. From time to time prior to its
Termination Date, each Bank severally agrees, on the terms and conditions set
forth in this Agreement, to make loans to either Borrower pursuant to this
Section from time to time in amounts such that the aggregate principal amount
of Committed Loans by such Bank at any one time outstanding to both Borrowers
shall not exceed the amount of its Commitment. Each Borrowing under this
subsection (a) shall be in an aggregate principal amount of $3,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.02(c)) and shall be
made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, either Borrower may borrow under
this subsection (a), or to the extent permitted by Section 2.11, prepay Loans
and reborrow under this subsection (a).
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(b) Extension of Commitments. The Commitments and the Termination
Date(s) may be extended, in the manner set forth in this subsection (b), on
each successive anniversary of the Effective Date (each such date, an
"Extension Date"), in each case to the date one year from the Termination
Date(s) in effect at such time. If the Borrowers wish to request an extension
of the Commitments and the Termination Date(s) on any Extension Date, they
shall give notice to that effect to the Agent, not less than 60 days nor more
than 90 days prior to such Extension Date, specifying the Extension Date and
proposed extended Termination Date(s), whereupon the Agent shall promptly
notify each of the Banks of such notice. Each Bank will use its best efforts
to respond to such request, whether affirmatively or negatively as it may elect
in its sole and absolute discretion, at least 30 days prior to the Extension
Date to the Agent. A Bank shall be considered to have responded negatively
unless its affirmative response consists of or is accompanied by an executed
counterpart of an Extension Agreement in substantially the form of Exhibit B
hereto, which upon delivery to the Agent shall be irrevocable. If the Required
Banks do not respond affirmatively to the proposed extension, the Termination
Date(s) then in effect will be retained. If Banks constituting the Required
Banks respond affirmatively at least 30 days prior to the Extension Date to the
proposed extension (such Banks, "Extending Banks") then the extension shall be
effective and the Commitments of the Extending Banks shall be extended from the
Termination Date(s) then in effect, effective on such Extension Date. In the
case of any Bank that responded negatively to a proposed extension (a
"Non-Extending Bank"), its Commitment shall expire on, and the Termination Date
with respect to it shall remain as, the Termination Date in effect for it
before giving effect to such extension. During the 120-day period following any
Extension Date on which the Commitments and the Termination Date(s) in effect
at such time were extended, the Company may notify a Non-Extending Bank of a
bank that is prepared to become an Assignee of its Commitment and its rights
and obligations under this Agreement and its Note, and upon receipt of such
notice such Non-Extending Bank shall promptly effect an assignment to such bank
pursuant to Section 11.06(c). The Termination Date with respect to such
Assignee shall be the latest date to which the Termination Date(s) of the
Extending Banks were extended on such Extension Date.
SECTION 2.02. Notice of Committed Borrowing. The Borrower shall give
the Agent notice (a "Notice of Committed Borrowing") not later than 12:00 Noon
(New York City time) on (x) the date of each Base Rate Borrowing, (y) the
second Domestic Business Day before each CD Borrowing and (z) the
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<PAGE> 22
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.01, a Borrower may, as set forth in this Section, request
the Banks to make offers to make Money Market Loans to such Borrower. The
Banks may, but shall have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section.
(b) Money Market Quote Request. When a Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit C hereto so as to be received no later
than 12:00 Noon (New York City time) on (x) the fifth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction
or (y) the Domestic Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Company and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
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(ii) the aggregate amount of such Borrowing, which
shall be $3,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of
a Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit D hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance
with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 11.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) 11:15 A.M. (New York
City time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Company and the
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Agent (or any Affiliate of the Agent) in
the capacity of a Bank may be submitted, and may only be submitted, if the
Agent or such Affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior to the deadline for
the other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute
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Rate Auction. Subject to Articles III and VI, any Money Market Quote so made
shall be irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit E hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x) must be
$3,000,000 or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money
Market Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit E hereto or
does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
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<PAGE> 25
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to correct
a manifest error in such former Money Market Quote. The Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of Money Market Loans
for which offers have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal amounts and
Money Market Margins or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the aggregate principal amount of
Money Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later than 12:00 Noon
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Company and the Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective) , the Borrower shall notify the Agent of
its acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$3,000,000 or a larger multiple of $1,000,000,
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(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's share (if
any) of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address referred to in Section 11.01. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to either Borrower on a
day on which such Borrower is to repay all or any part of an outstanding Loan
from such Bank, such Bank shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the
amount being borrowed by such Borrower and the amount being repaid shall be
made available by such Bank to the Agent as provided in subsection (b), or
remitted by such Borrower to the Agent as provided in Section 2.12, as the case
may be.
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(d) Unless the Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the
Agent such Bank's share of such Borrowing, the Agent may assume that such Bank
has made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent 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, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.07 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower shall
be evidenced by a single Note of such Borrower payable to the order of such
Bank for the account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to either Borrower and the Agent,
request that its Loans of a particular type to such Borrower be evidenced by a
separate Note of such Borrower in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect the fact
that it evidences solely Loans of the relevant type. Each reference in this
Agreement to a "Note" or the "Notes" of such Bank shall be deemed to refer to
and include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(a),
the Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it to each Borrower and
the date and amount of each payment of principal made by the Borrower with
respect thereto, and may, if such Bank so elects in connection with any
transfer or enforcement of its Note of either Borrower, endorse on the schedule
forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan to such Borrower then outstanding;
provided that the failure of any Bank to
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make any such recordation or endorsement shall not affect the obligations of
either Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by each Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate otherwise applicable
to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at
a rate per annum equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided that if any CD
Loan or any portion thereof shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of less than 30 days,
such portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of or interest on any CD Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the higher of (i) the sum of the CD Margin for such day
plus the Adjusted CD Rate applicable to the Interest Period for such Loan and
(ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
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[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum
bid at 10:00 A.M. (New York City time) (or as soon thereafter as practicable)
on the first day of such Interest Period by two or more New York certificate of
deposit dealers of recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Sec. 327.3(d) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
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<PAGE> 30
automatically on and as of the effective date of any change in the Assessment
Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the Adjusted London Interbank offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market, as
determined by each Euro-Dollar Reference Bank at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
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<PAGE> 31
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to the
Interest Period for such Loan and (ii) the sum of 2% plus the Euro-Dollar
Margin for such day plus the quotient obtained (rounded upward, if necessary,
to the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time not longer than
six months as the Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Dollar
Reference Banks are offered to such Euro-Dollar Reference Bank in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such
day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 2% plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and
the participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
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<PAGE> 32
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available
on a timely basis, the provisions of Section 8.01 shall apply. So long as
quotations are available from all four of the Reference Banks, the highest of
such quotations shall be disregarded for purposes of rate determinations
hereunder.
SECTION 2.08. Fees.
(a) Facility Fee. The Company shall pay to the Agent for the
account of each Bank a facility fee at the Facility Fee Rate (determined daily
in accordance with the Pricing Schedule). Such facility fee shall accrue for
the account of each Bank (i) from and including the date hereof to but
excluding its Termination Date or earlier date of termination of its Commitment
in its entirety, on the daily amount of its Commitment (whether used or unused)
and (ii) from and including its Termination Date or such earlier date of
termination to but excluding the date its Loans shall be repaid in their
entirety, on the daily aggregate outstanding principal amount of its Loans.
(b) Payments. Accrued fees under this Section shall be payable
quarterly on each March 31, June 30, September 30 and December 31 and upon the
date of termination of the Commitments in their entirety (or, with respect to a
Non-Extending Bank, the Termination Date applicable to it) and, if later, the
date the Loans of any Bank shall be repaid in their entirety.
SECTION 2.09. Optional Termination or Reduction of Commitments. The
Company may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, if no Loans are outstanding at such
time or (ii) ratably reduce from time to time by an aggregate amount of
$1,000,000 or any larger multiple thereof, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans.
SECTION 2.10. Mandatory Termination of Commitments. The Commitment of
each Bank shall terminate on the Termination Date for such Bank, and any Loans
of such Bank then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
SECTION 2.11. Optional Prepayments. (a) Subject in the case of any
Fixed Rate Borrowing to Section 2.13, the Borrower may, upon at least one
Domestic Business Day's
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<PAGE> 33
notice to the Agent, prepay any Domestic Borrowing (or any Money Market
Borrowing bearing interest at the Base Rate pursuant to Section 8.01(a)) or
upon at least three EuroDollar Business Days' notice to the Agent, prepay any
EuroDollar Borrowing, in each case in whole at any time, or from time to time
in part in amounts aggregating $3,000,000 or any larger multiple of $l,000,000,
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Borrowing.
(b) Except as provided in Section 2.11(a), neither Borrower may
prepay all or any portion of the principal amount of any Money Market Loan
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment and such notice shall
not thereafter be revocable by the Borrower.
SECTION 2,12. General Provisions as to Payments.
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 12:00 Noon (New
York City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Agent at its address referred to in Section
11.01. The Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Agent for the account of the Banks. Whenever
any payment of principal of, or interest on, the Domestic Loans or of fees
shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or interest on, the Money
Market Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Agent shall have received notice from either
Borrower prior to the date on which any payment is due from such Borrower to
the Banks hereunder that such
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<PAGE> 34
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that such Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13, Funding Losses. If either Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article VI or VIII
or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.07(d), or if either Borrower fails to borrow or prepay any Fixed Rate
Loans after notice has been given to any Bank in accordance with Section 2. 04
(a) or 2.11 (c), the Company shall reimburse each Bank within 15 days after
demand for any resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow or prepay, provided that such Bank shall have delivered to
the Company a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS
SECTION 3.01. Closing. The closing hereunder shall occur upon receipt
by the Agent of the following documents, each dated the Closing Date unless
otherwise indicated:
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<PAGE> 35
(a) a duly executed Note of each Borrower for the account of each
Bank dated on or before the Closing Date complying with the provisions of
Section 2.05;
(b) an opinion of Jonathan Robertson, counsel for the Borrowers,
substantially in the form of Exhibit F hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required
Banks may reasonably request;
(c) an opinion of Davis Polk & Wardwell, special counsel for the
Agent, substantially in the form of Exhibit G hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request; and
(d) all documents the Agent may reasonably request relating to the
existence of each Borrower, the corporate authority for and the validity of
this Agreement and the Notes of such Borrower, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent.
The Agent shall promptly notify the Borrowers and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or
prior to April 15, 1994;
(b) receipt by the Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of the
Borrowers contained in this Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set forth in Sections
4.04(c) and 4.05 as to any matter which has theretofore
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<PAGE> 36
been disclosed in writing by the Company to the Banks) shall be true
on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing as to
the facts specified in clauses (c), (d) and (e) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that:
SECTION 4.01, Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the state of its incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
SECTION 4.02, Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Company
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or any of its Consolidated Subsidiaries or result in
the creation or imposition of any Lien on any asset of the Company or any of
its Consolidated Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and its Notes, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Company, in each case enforceable in accordance with its terms,
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 1992 and the related consolidated
statements of income, retained earnings and cash flows for the fiscal year then
ended,
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<PAGE> 37
reported on by Deloitte & Touche and set forth in the Company's 1992 Form 10-K,
a copy of which has been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles, the consolidated
financial position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
fiscal year.
(b) The unaudited consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of September 30, 1993 and the related
unaudited consolidated statements of income and cash flows for the nine months
then ended, set forth in the Company's Latest Form 10-Q, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles applied on a basis consistent with the
financial statements referred to in subsection (a) of this Section, the
consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such nine month period (subject to year-end audit adjustments).
(c) Since September 30, 1993, there has been no material adverse
change in the business, financial position, results of operations or prospects
of the Company and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Company threatened against or
affecting, the Company or any of its Consolidated Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or consolidated results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a
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<PAGE> 38
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the company conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Consolidated Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties presently
or previously owned, any capital or operating expenditures required to achieve
or maintain compliance with environmental protection standards imposed by law
or as a condition of any license, permit or contract, any related constraints
on operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Company and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. The Company and its Consolidated Subsidiaries
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any Consolidated Subsidiary. The charges, accruals and reserves an the
books of the Company and its Consolidated Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Company, adequate.
SECTION 4,09. Consolidated Subsidiaries. Each of the Company's
Consolidated Subsidiaries is a corporation or other entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and has all legal powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 4.10. Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
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ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, retained earnings and cash flows
for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner acceptable to
the Securities and Exchange Commission by Deloitte & Touche or other
independent public accountants of nationally recognized standing, together with
an unaudited annual report prepared on a consolidating basis in conformity with
generally accepted accounting principles;
(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income
and cash flows for such quarter and for the portion of the Company's fiscal
year ended at the end of such quarter, setting forth in the case of such income
and cash flows in comparative form the figures for the corresponding quarter
and the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer, controller or treasurer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer, controller or treasurer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company
was in compliance with the requirements of Sections 5.07 to 5.13, inclusive, on
the date of such financial
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statements and (ii) stating whether any Default exists on the date of such
certificate and, if any Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to take with respect
thereto;
(d) within five days after any officer of the Company obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer, controller or treasurer of the Company setting
forth the details thereof and the action which the Company is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company shall have
filed with the Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a
copy of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
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in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such
occurrence and action, if any, which the Company or applicable member
of the ERISA Group is required or proposes to take; and
(h) from time to time such additional information regarding the
financial position or business of the company and its Consolidated Subsidiaries
as the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Company will pay and
discharge, and will cause each Consolidated Subsidiary to pay and discharge, at
or before maturity, all their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where any of the same
may be contested in good faith by appropriate proceedings, and will maintain,
and will cause each Consolidated Subsidiary to maintain, in accordance with
generally accepted accounting principles, appropriate reserves for the accrual
of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
(a) The Company will keep, and will cause each Consolidated
Subsidiary to keep, all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted.
(b) The Company will maintain, and will cause each Consolidated
Subsidiary to maintain, insurance to such extent and against such hazards and
liabilities as is commonly maintained by companies similarly situated or as the
Required Banks may reasonably request from time to time.
SECTION 5.04. Maintenance of Existence. The Company will maintain
and preserve, and, subject to the provisions of clauses (x), (y) and (z) of
Section 5.13, will cause each Consolidated Subsidiary to maintain and preserve,
its respective existence as a corporation or other form of business
organization, as the case may be, and all rights, privileges, licenses,
patents, patent rights, copyrights, trademarks, trade names, franchises and
other authority to the extent material and necessary for the conduct of its
respective business in the ordinary course as conducted from time to time.
SECTION 5.05. Compliance with Laws, The Company will comply, and cause
each Consolidated Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation,
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Environmental Laws and ERISA and the rules and regulations thereunder) except
where the necessity of compliance therewith is contested in good faith by
appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records. The Company
will keep, and will cause each Consolidated Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
generally accepted accounting principles shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Consolidated Subsidiary to permit, representatives of any Bank
at such Bank's expense to visit and inspect any of their respective properties,
to examine and make abstracts from any of their respective books and records
and to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants, all at such
reasonable times and as often as may reasonably be desired.
SECTION 5.07. Current Ratio. Consolidated Current Assets will at no
time be less than 105% of Consolidated Current Liabilities.
SECTION 5.08. Consolidated Indebtedness to Consolidated Tangible Net
Worth. Consolidated Indebtedness will at no time exceed 150% of Consolidated
Tangible Net Worth.
SECTION 5.09. Consolidated Debt to Consolidated Tangible Net Worth.
Consolidated Debt will at no time exceed 120% of Consolidated Tangible Net
Worth.
SECTION 5.10. Interest Coverage. Consolidated Adjusted EBIT will not,
for any period of four consecutive fiscal quarters, be less than 150% of
Consolidated Interest Expense for such period.
SECTION 5.11. Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth will at no time be less than the Minimum Compliance Level.
The "Minimum Compliance Level" means, at any date, an amount equal to the sum
of (a) $300,000,000 and (b) for each fiscal quarter of the Company ended after
January 1, 1992 and on or prior to the date of determination for which
Consolidated Net Earnings is a positive number, an amount equal to 40% of
Consolidated Net Earnings for such fiscal quarter.
SECTION 5.12. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, assume
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or suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing
Indebtedness outstanding on the date of this Agreement;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such asset, provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(g) Liens for taxes either not yet due or being contested in good
faith by appropriate proceedings so long as such proceedings do not
involve any material danger of the sale, forfeiture or loss of any
material asset and the Company shall maintain in accordance with generally
accepted accounting principles appropriate reserves therefor;
(h) materialmen's, mechanic's, workmen's, repairmen's or other like
Liens arising in the ordinary course of business (including those arising
under maintenance agreements entered into in the ordinary course of
business) securing obligations that are not overdue or are being contested
in good faith by appropriate proceedings so long as such proceedings do
not involve any material danger of the sale, forfeiture or loss of any
material asset;
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(i) Liens which are bonded in a manner reasonably satisfactory to
the Required Banks;
(j) Liens arising out of any judgment or award in an amount of
$50,000,000 or less, but only if the judgment secured shall be
discharged, vacated, reversed or execution thereof stayed pending appeal
within 30 days after the entry thereof, and such discharge, vacation,
reversal or stay shall continue in force and effect;
(k) Liens arising in the ordinary course of its business which (i)
do not secure Debt, (ii) do not secure any obligation in an amount
exceeding $50,000,000 and (iii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business;
(l) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash equivalents
subject to such Liens may at no time exceed $25,000,000; and
(m) Liens not otherwise permitted by the foregoing clauses of this
Section securing Indebtedness in an aggregate principal or face amount at
any date not to exceed 10% of Consolidated Tangible Net Worth.
SECTION 5.13. Consolidations, Mergers and Sales of Assets. The Company
will not, and will not permit any Consolidated Subsidiary to:
(a) be a party to any merger or consolidation;
(b) sell, transfer, convey, lease or otherwise dispose of all or
any of the assets of the Company and its Consolidated Subsidiaries,
except and excluding sales of inventory in the ordinary course of business,
in excess in value, in the aggregate for all such sales, transfers,
conveyances, leases or other disposals per fiscal year of the Company and
Consolidated Subsidiaries of the Sale Limit (as hereinafter defined)
(provided that any primary or secondary sale of equity securities of a
Consolidated Subsidiary that results in its ceasing to be a Consolidated
Subsidiary shall be deemed to be a sale of all the assets of such
Consolidated Subsidiary); or
(c) sell or assign, with or without recourse, any accounts
receivable or chattel paper, in excess for the aggregate face amount of
all accounts receivable or
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chattel paper sold and outstanding at any one time of $100,000,000.
Notwithstanding the foregoing:
(x) any Consolidated Subsidiary may merge into the
Borrower or into or with any other Consolidated Subsidiary;
(y) any Consolidated Subsidiary may consolidate with
any other Consolidated Subsidiary so long as the resulting Person is a
Consolidated Subsidiary; and
(z) any Consolidated Subsidiary may sell, transfer,
convey, lease or assign any or all of its assets to the Company or
other Consolidated Subsidiary; provided, in each of the cases
described in preceding clauses (x), (y) and (z), that immediately
thereafter and after giving effect thereto, no Default shall have
occurred and be continuing.
For purposes of this Section 5.13 only, the "Sale Limit" shall mean an
annual amount equalling 25% of Consolidated Tangible Net Worth determined as of
the end of the immediately preceding fiscal year. The term "value" shall mean,
with respect to any asset, stock or other ownership or equity interest disposed
of, the greater of such item's book or fair market value as of the date of
disposition, with "book value" being the value of such item as would appear
immediately prior to such disposition on a balance sheet of the owner of such
item prepared in accordance with generally accepted accounting principles.
SECTION 5.14. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Company for general corporate purposes. None
of such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) either Borrower shall fail to pay when due any principal of
any Loan;
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(b) either Borrower shall fail to pay interest on any Loan or any
fees or other amounts payable hereunder within five days after the same
becomes due and payable;
(c) the Company shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.14, inclusive;
(d) either Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clause (a), (b) or (c) above) for 30 days after written notice thereof has
been given to the Company by the Agent at the request of any Bank;
(e) any representation, warranty, certification or statement made
by either Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or deemed
made);
(f) the Company or any Consolidated Subsidiary shall fail to make
any payment in respect of any Material Indebtedness when due or within any
applicable grace period;
(g) any event or condition shall occur which results in the
acceleration of the maturity of any Material Indebtedness or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holder of such Indebtedness or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(h) the Company or any Consolidated Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
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(i) an involuntary case or other proceeding shall be commenced
against the Company or any Consolidated Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 30 days; or an order for relief shall be entered
against the Company or any Consolidated Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000;
(k) judgments or orders for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the Company or any
Consolidated Subsidiary and such judgments or orders shall continue
unsatisfied and unstayed for a period of 30 days; or
(l) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act) of 35% or more of
the outstanding shares of common stock of the Company; or, during any
period of 12 consecutive calendar months, individuals who were directors of
the Company on the first day of such
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period shall cease to constitute a majority of the board of directors of
the Company;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate
principal amount of the Loans, by notice to the Borrowers declare the Notes
(together with accrued interest thereon) to be, and the Notes shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower;
provided that in the case of any of the Events of Default specified in clause
(h) or (i) above with respect to either Borrower, without any notice to either
Borrower or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued interest thereon)
shall become immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by each Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(d) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the Notes as are delegated
to the Agent by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and Morgan Guaranty Trust Company of New York and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with either Borrower or any Subsidiary or Affiliate of either
Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder
are only those expressly set forth
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herein. Without limiting the generality of the foregoing, the Agent shall not
be required to take any action with respect to any Default, except as expressly
provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for either Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
Affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent
nor any of its Affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the Borrowers; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission or similar
writing) believed by it to be genuine or to be signed by the proper party or
parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its Affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made
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its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate
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or the Adjusted London Interbank Offered Rate, as the case may be, as
determined by the Agent will not adequately and fairly reflect the cost to
such Banks of funding their CD Loans or Euro-Dollar Loans, as the case may
be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless
the Borrower notifies the Agent at least two Domestic Business Days before the
date of any Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding
the last day of the Interest Period applicable thereto at the Base Rate for
such day.
SECTION 8.02. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans to either Borrower and such Bank shall so notify the Agent,
the Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Agent that
the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans to such Borrower shall be
suspended. Before giving any notice to the Agent pursuant to this Section,
such Bank shall designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each such Euro-Dollar Loan, together with accrued interest
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thereon. Concurrently with prepaying each such Euro-Dollar Loan, the Borrower
shall borrow a Base Rate Loan in an equal principal amount from such Bank (on
which interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and such Bank shall make such a
Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or any obligation to
make Committed Loans or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding (i) with respect to any CD Loan any such requirement included in
an applicable Domestic Reserve Percentage and (ii) with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment (excluding, with
respect to any CD Loan, any such requirement reflected in an applicable
Assessment Rate) or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or on
the United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans and the result of any of the foregoing is
to increase the cost to such Bank (or its Applicable Lending Office) of making
or maintaining any Fixed Rate Loan, or to reduce the amount of any sum received
or receivable by such Bank (or its Applicable Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Company shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental
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authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days
after demand by such Bank (with a copy to the Agent), the company shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or
its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
SECTION 8.04. Taxes. (a) For purposes of this Section 8.04, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by
either Borrower pursuant to this Agreement or under any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bank and
the Agent, taxes imposed on its income, and franchise or similar taxes imposed
on it, by a jurisdiction under the laws of which such Bank or the Agent (as the
case may be) is organized or in which its principal executive office is located
or, in the case of each Bank, in which its Applicable Lending Office is located
and (ii) in the case of each Bank, any United States withholding tax imposed on
such payments but only to the extent that such Bank is subject to United States
withholding tax at the time such Bank first becomes a party to this Agreement.
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"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note.
(b) Any and all payments by either Borrower to or for the account
of any Bank or the Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; provided that, if either Borrower shall
be required by law to deduct any Taxes or Other Taxes from any such payments,
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions, (iii) such Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) such Borrower shall
furnish to the Agent, at its address referred to in Section 11.01, the original
or a certified copy of a receipt evidencing payment thereof,
(c) The Company agrees to indemnify each Bank and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as the case may be)
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be paid within
15 days after such Bank or the Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each
other Bank, and from time to time thereafter if requested in writing by the
Borrower (but only so long as such Bank remains lawfully able to do so), shall
provide each Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to benefits under an income tax treaty to
which the United States is a party which exempts the Bank from United States
withholding tax or reduces the rate of withholding tax on payments of interest
for the account of such Bank or certifying that the income receivable pursuant
to this
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Agreement is effectively connected with the conduct of a trade or business in
the United States.
(e) For any period with respect to which a Bank has failed to
provide either Borrower with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.04(b) or (c) with respect to Taxes imposed by the United States on payments
by such Borrower; provided that if a Bank, which is otherwise exempt from or
subject to a reduced rate of withholding tax, becomes subject to Taxes because
of its failure to deliver a form required hereunder, such Borrower shall take
such steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes,
(f) If either Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 8.04, then such Bank will
change the jurisdiction of its Applicable Lending office if, in the judgment of
such Bank, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Bank.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to either
Borrower has been suspended pursuant to Section 8,02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its CD Loans
or Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Agent, have elected that
the provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans to such Borrower which would otherwise be made by
such Bank as CD Loans or Euro-Dollar Loans, as the case may be, shall
be made instead as Base Rate Loans (on which interest and principal shall
be payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case
may be, to such Borrower has been repaid, all payments of principal
which would otherwise be applied to repay such Fixed Rate Loans shall be
applied to repay its Base Rate Loans instead.
50
<PAGE> 56
SECTION 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii)
any Bank has demanded compensation under Section 8.03 or 8.04, the Borrowers
shall have the right, with the assistance of the Agent, to seek a mutually
satisfactory substitute bank or banks (which may be one or more of the Banks)
to purchase the Note and assume the Commitment of such Bank.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF MK-OHIO
MK-Ohio represents and warrants that:
SECTION 9.01. Corporate Existence and Power. it is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is a Wholly-Owned Consolidated Subsidiary of
the Company.
SECTION 9.02. Corporate and Governmental Authorization; Contravention.
The execution and delivery by it of this Agreement and its Notes, and the
performance by it of this Agreement and its Notes, are within its corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of its certificate or incorporation or by-laws
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon it or any of its Subsidiaries result in the creation or imposition
of any Lien on any asset of MK-Ohio or any of its Subsidiaries.
SECTION 9.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of MK-Ohio and its Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations
of MK-Ohio.
ARTICLE X
GUARANTY
SECTION 10.01. The Guarantees. Subject to Section 10.01, each
Borrower hereby unconditionally guarantees the full and punctual payment
(whether at stated
51
<PAGE> 57
maturity, upon acceleration or otherwise) of the principal of and interest on
each Note issued by the other Borrower pursuant to this Agreement, and the full
and punctual payment of all other amounts payable by the other Borrower under
this Agreement. Upon failure by either Borrower to pay punctually any such
amount, the other Borrower shall forthwith on demand pay the amount not so paid
at the place and in the manner specified in this Agreement.
SECTION 10.02. Guarantees Unconditional. Subject to Section 10.07,
the obligations of each Borrower hereunder shall be unconditional and absolute
and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the other Borrower under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the other Borrower under
this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of the other Borrower, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the other Borrower or its assets or any
resulting release or discharge of any obligation of the other Borrower
contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which a
Borrower may have at any time against the other Borrower, the Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
other Borrower for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the other Borrower of the principal of or interest on any Note
or any other amount payable by it under this Agreement; or
52
<PAGE> 58
(vii) any other act or omission to act or delay of any kind by the
other Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of its obligations
hereunder.
SECTION 10.03. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. The Borrowers' obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Company and MK-Ohio under this Agreement shall have been paid in full. If at
any time any payment of the principal of or interest on any Note or any other
amount payable by a Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of a Borrower or otherwise, the other Borrower's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
SECTION 10.04. Waiver by the Borrowers. Each Borrower irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the other Borrower or any other Person,
SECTION 10.05. Subrogation, Each Borrower irrevocably waives any and
all rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee
against the other Borrower with respect to such payment or against any direct
or indirect security therefor, or otherwise to be reimbursed, indemnified or
exonerated by or for the account of the other Borrower in respect thereof.
SECTION 10.06. Stay of Acceleration, In the event that acceleration of
the time for payment of any amount payable by either Borrower under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of such Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by the other Borrower
hereunder forthwith on demand by the Agent made at the request of the Required
Banks.
SECTION 10.07. Limit of Liability. The obligations of MK-Ohio under
this Article X shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations under this Article X subject to
avoidance under Section 548 of the United States
53
<PAGE> 59
Bankruptcy Code or any comparable provisions of any applicable state law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (X) in the case of either Borrower or the Agent, at its address,
facsimile number or telex number set forth on the signature pages hereof, (y)
in the case of any Bank, at its address, facsimile number or telex number set
forth in its Administrative Questionnaire or (z) in the case of any party, such
other address, facsimile number or telex number as such party may hereafter
specify for the purpose by notice to the Agent and the Company. Each such
notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this
Section and confirmation of receipt is received, (iii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Agent under Article II or Article VIII shall not be effective until
received.
SECTION 11.02. No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11.03. Expenses; Indemnification. (a) The Company shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Agent and each Bank, including the
54
<PAGE> 60
reasonable fees and disbursements of counsel (including allocated costs of
internal counsel), in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective Affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including allocated costs of internal counsel), which
may be incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall be
designated a party thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder
(i) for such Indemnitee's own gross negligence or willful misconduct or (ii) in
the case of any Bank, for its failure to perform the duties expressly required
to be performed by it by the terms of this Agreement, in each case as
determined by a court of competent jurisdiction.
SECTION 11.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of a
Borrower other than its indebtedness hereunder. Each Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder
of a participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation.
55
<PAGE> 61
SECTION 11.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrowers and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the
Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) change the aggregate amount by which or
to which the Commitments are required to be reduced on or prior to any
Commitment Reduction Date or (v) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement.
SECTION 11.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither Borrower may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
or any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause
(i), (ii), (iii) or (iv) of Section 11.05 without the consent of the
Participant. The Borrowers agree that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
VIII with respect to its participating interest. An assignment or other
transfer which is not
56
<PAGE> 62
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to
an initial Commitment of not less than $10,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit H hereto executed by such Assignee and
such transferor Bank, with (and subject to) the subscribed consent of the
Company and the Agent; provided that if an Assignee is an Affiliate of such
transferor Bank or was a Bank immediately prior to such assignment, no such
consent shall be required; and provided further that such assignment may, but
need not, include rights of the transferor Bank in respect of outstanding Money
Market Loans. Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such Assignee shall be a
Bank party to this Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,500.
If the Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrowers and the Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the
57
<PAGE> 63
provisions of Section 8.02, 8.03 or 8.04 requiring such Bank to designate a
different Applicable Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
SECTION 11.07. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement,
SECTION 11.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 11.09. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon
58
<PAGE> 64
receipt by the Agent of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Agent in form satisfactory to it
of telegraphic, telex, facsimile or other written confirmation from such party
of execution of a counterpart hereof by such party),
SECTION 11.10. WAIVER OF JURY TRIAL, EACH OF THE BORROWERS, THE AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
MORRISON KNUDSEN CORPORATION
(a Delaware corporation)
By /s/J.F. CLEARY, JR. /s/D.L. BRIGHAM
----------------------------------------
Title: Vice President Treasurer
Finance & Planning
[Address] P.O. Box 73 Boise, ID 83729
Telex number: 368439
Facsimile number: (208) 386-5922
MORRISON KNUDSEN CORPORATION
(an Ohio Corporation)
By /s/J.F. CLEARY, JR. /s/D.L.BRIGHAM
-------------------------------------------
Title: Vice President Treasurer
Finance & Planning
[Address] P.0, Box 73 Boise, ID 83729
Telex number: 368439
Facsimile number: (208)386-5743
61
<PAGE> 65
Commitments
- -----------
$12,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ STEVEN A. TULIP
----------------------------------
Steven A. Tulip
Title: Vice President
$12,500,000 J.P. MORGAN DELAWARE
By
----------------------------------
Title:
$25,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
----------------------------------
Title:
$25,000,000 CONTINENTAL BANK N.A.
By
-----------------------------------
Title:
$25,000,000 DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
-----------------------------------
Title:
By
-----------------------------------
Title:
62
<PAGE> 66
Commitments
- -----------
$12,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------------
Title:
$12,500,000 J.P. MORGAN DELAWARE
By /s/PHILLIP S. DETJENS
----------------------------------
Name: Phillip S. Detjens
Title: Vice President
$25,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/
-----------------------------------
Title: Vice President
$25,000,000 CONTINENTAL BANK N.A.
By
-----------------------------------
Title:
$25,000,000 DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
-----------------------------------
Title:
By
-----------------------------------
Title:
62
<PAGE> 67
Commitments
- -----------
$12,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------------
Title:
$12,500,000 J.P. MORGAN DELAWARE
By
----------------------------------
Title:
$25,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
----------------------------------
Title:
$25,000,000 CONTINENTAL BANK N.A.
By /s/ HETTY E. HARLAN
-----------------------------------
Title: Managing Director
$25,000,000 DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
-----------------------------------
Title:
By
-----------------------------------
Title:
62
<PAGE> 68
Commitments
- -----------
$12,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------------
Title:
$12,500,000 J.P. MORGAN DELAWARE
By
----------------------------------
Title:
$25,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/RICHARD J. CERF
----------------------------------
Title: VP
$25,000,000 CONTINENTAL BANK N.A.
By
-----------------------------------
Title:
$25,000,000 DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
-----------------------------------
Title:
By
-----------------------------------
Title:
62
<PAGE> 69
Commitments
- -----------
$12,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------------
Title:
$12,500,000 J.P. MORGAN DELAWARE
By
----------------------------------
Title:
$25,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
----------------------------------
Title:
$25,000,000 CONTINENTAL BANK N.A.
By
-----------------------------------
Title:
$25,000,000 DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By /s/ JONATHAN SCOTT JESSUP
-----------------------------------
Title: J. Scott Jessup
Vice President
By /s/ STEVEN N. WARDEN
-----------------------------------
Title: Steven N. Warden
Director
62
<PAGE> 70
$25,000,000 SOCIETY NATIONAL BANK
By /s/ JANICE M. COOK
--------------------------------
Title: Vice President
$25,000,000 NATIONAL WESTMINSTER BANK PLC
By
--------------------------------
Title:
- ------------------
Total Commitments
$150,000,000
==================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
--------------------------------
Title:
60 Wall Street
New York, New York 10260-0060
Attention:
------------------------
Telex number: 177615
Facsimile number:
63
<PAGE> 71
$25,000,000 SOCIETY NATIONAL BANK
By
--------------------------------
Title:
$25,000,000 NATIONAL WESTMINSTER BANK PLC
By /s/[unreadable signature]
--------------------------------
Title: S.V.P.
- ------------------
Total Commitments
$150,000,000
==================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
--------------------------------
Title:
60 Wall Street
New York, New York 10260-0060
Attention:
------------------------
Telex number: 177615
Facsimile number:
63
<PAGE> 72
$25,000,000 SOCIETY NATIONAL BANK
By
--------------------------------
Title:
$25,000,000 NATIONAL WESTMINSTER BANK PLC
By
--------------------------------
Title:
- ------------------
Total Commitments
$150,000,000
==================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ STEVEN A. TULIP
--------------------------------
Steven A. Tulip
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention:
------------------------
Telex number: 177615
Facsimile number:
63
<PAGE> 73
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for any
day are the respective percentages set forth below in the applicable row under
the column corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
========================================================
Level Level Level Level Level
Status I II III IV V
========================================================
<S> <C> <C> <C> <C> <C>
Euro-Dollar
Margin 0.20% 0.30% 0.40% 0.50% 0.70%
--------------------------------------------------------
CD Margin 0.325% 0.425% 0.525% 0.625% 0.825%
--------------------------------------------------------
Facility Fee 0.15% 0.175% 0.20% 0.225% 0.30%
Rate
========================================================
</TABLE>
1
<PAGE> 74
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, (a)(i) the
Borrower's long-term debt is rated A- or higher by S&P and, if rated by
Moody's, A3 or higher by Moody's or (ii) the Borrower's commercial paper is
rated A1 or higher by S&P and P1 by Moody's and (b) neither Level III Status,
Level IV Status nor Level V Status exists.
"Level II Status" exists at any date if, at such date, (a)(i) the
Borrower's long-term debt is rated BBB+ or higher by S&P and, if rated by
Moody's, Baa1 or higher by Moody's or (ii) the Borrower's commercial paper is
rated A2 or higher by S&P and P2 or higher by Moody's and (b) none of Level I
Status, Level III Status, Level IV Status or Level V Status exists.
"Level III Status" exists at any date if, at such date, (a)(i) the
Borrower's long-term debt is rated BBB by S&P or, if rated by Moody's, Baa2 by
Moody's or (ii) the Borrower's commercial paper is rated A3 by S&P and P2 or
higher by Moody's or A2 or higher by S&P and P3 by Moody's and (b) neither
Level IV Status nor Level V Status exists.
"Level IV Status" exists at any date if, at such date, (a)(i) the
Borrower's long-term debt is rated BBB- by S&P or, if rated by Moody's, Baa3 by
Moody's or (ii) the Borrower's commercial paper is rated A3 by S&P and P3 by
Moody's and (b) Level V Status does not exist.
"Level V Status" exists at any date if, at such date, (a) the
Borrower's long-term debt is rated BB+ or lower by S&P or, if rated by Moody's,
Ba1 or lower by Moody's or (b) the Borrower's long-term debt is rated by
neither S&P nor Moody's and either (x) the Borrower's commercial paper is not
rated by both S&P and Moody's or (y) the Borrower's commercial paper is rated
below A3 by S&P or below P3 by Moody's.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Corporation.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status or Level V Status exists at
any date.
2
<PAGE> 75
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt and commercial paper of the
Borrower without third-party credit enhancement, and any rating assigned to any
other debt security of the Borrower shall be disregarded. The rating in effect
at any date is that in effect at the close of business on such date.
3
<PAGE> 76
EXHIBIT A
NOTE
New York, New York
, 19
For value received, Morrison Knudsen Corporation, [a Delaware] [an
Ohio] corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the last day
of the Interest Period relating to such Loan. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Morgan Guaranty
Trust Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of March 31, 1994 among the Borrower, Morrison Knudsen Corporation, [a
Delaware] [an Ohio] corporation, the banks listed on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as Agent (as the same
may be amended from time to time, the
<PAGE> 77
"Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
MORRISON KNUDSEN CORPORATION
By
--------------------------
Title:
----------------------
2
<PAGE> 78
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3
<PAGE> 79
EXHIBIT B
EXTENSION AGREEMENT
Morrison Knudsen Corporation
(a Delaware corporation)
[Address]
Morrison Knudsen Corporation
(an Ohio corporation)
[Address]
Morgan Guaranty Trust Company
of New York, as Agent
under the Credit Agreement
referred to below
60 Wall Street
New York, NY 10260
Gentlemen:
The undersigned hereby agree to extend, effective [Extension
Date], the Commitment and Termination Date of [Name of Bank] under the Credit
Agreement dated as of March 31, 1994 among Morrison Knudsen Corporation, a
Delaware corporation, Morrison Knudsen Corporation, an Ohio corporation, the
Banks listed therein and Morgan Guaranty Trust Company of New York, as Agent
(the "Credit Agreement") for one year to [date to which the Commitment and
Termination Date are extended]. Terms defined in the Credit Agreement are used
herein as therein defined,
This Extension Agreement shall be construed in accordance with
and governed by the law of the State of New York.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------
Title:
(NAME OF BANK]
By
----------------------------
Title:
<PAGE> 80
Agreed and accepted:
MORRISON KNUDSEN CORPORATION
(a Delaware corporation)
By
---------------------------
Title:
MORRISON KNUDSEN CORPORATION
(an Ohio corporation)
By
---------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
---------------------------
Title:
2
<PAGE> 81
EXHIBIT C
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: Morrison Knudsen Corporation, (a Delaware] [an Ohio] corporation
(the "Borrower")
Re: Credit Agreement (the "Credit Agreement")
dated as of , 1994 among the
Borrower, the Banks listed on the signature pages thereof and
the Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing:
--------------------------
Principal Amount* Interest Period
- ----------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
- -------------------------
* Amount must be $3,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 30 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
<PAGE> 82
Terms used herein have the meanings assigned to them in the
Credit Agreement.
MORRISON KNUDSEN CORPORATION
([a Delaware] [an Ohio] corporation)
By
-----------------------------------
Title:
2
<PAGE> 83
EXHIBIT D
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Morrison Knudsen
Corporation, [a Delaware] [an Ohio] corporation (the
"Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of
March 31, 1994 among the Borrower, Morrison Knudsen Corporation, [a Delaware]
[an Ohio] corporation, the Banks parties thereto and the undersigned, as Agent,
we are pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing:
------------------------
Principal Amount Interest Period
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.]
[11:15 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
-------------------------------
Authorized Officer
<PAGE> 84
EXHIBIT E
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York, as Agent
Re: Money Market Quote to Morrison Knudsen Corporation, [a Delaware]
[an Ohio] corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
, 1994, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
____________________________________________________________________
3. Date of Borrowing: ____________________________________*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
- --------- --------- ------------ --------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed $ .]**
- --------------
* As specified in the related Invitation,
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate (notes continued on following page)
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement dated as of March 31, 1994 among the Borrower, Morrison
Knudsen Corporation, [a Delaware] [an Ohio] corporation, the Banks
<PAGE> 85
listed on the signature pages thereof and yourselves, as Agent, irrevocably
obligates us to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: ___________________________ By: ___________________________
Authorized Officer
- ---------------------------
limitation if the sum of the individual offers exceeds the amount the Bank is
willing to lend. Bids must be made for $5,000,000 or a larger multiple of
$1,000,000.
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify
2
<PAGE> 86
percentage (to the nearest 1/10,000 of 1%) and specify whether "PLUS" or
"MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th
of 1%).
3
<PAGE> 87
EXHIBIT F
OPINION OF
COUNSEL FOR THE BORROWER
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have acted as counsel for Morrison Knudsen Corporation, a
Delaware corporation, and Morrison Knudsen Corporation, an Ohio corporation
(the "Borrowers"), in connection with the Credit Agreement (the "Credit
Agreement") dated as of March 31, 1994 among the Borrowers, the banks listed on
the signature pages thereof and Morgan Guaranty Trust Company of New York, as
Agent. Terms defined in the Credit Agreement are used herein as therein
defined. This opinion is being rendered to you at the request of our clients
pursuant to Section 3.01(b) of the Credit Agreement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
2. The execution, delivery and performance by each Borrower of
the Credit Agreement and its Notes are within its corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or
<PAGE> 88
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of either Borrower or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Company or any of its Consolidated
Subsidiaries or result in the creation or imposition of any Lien on any asset
of the Company or any of its Consolidated Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement
of each Borrower and each Note of each Borrower constitutes a valid and binding
obligation of such Borrower, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors rights generally and by general principles of equity.
4. There is no action, suit or proceeding pending against, or to
the best of our knowledge threatened against or affecting, the Company or any
of its Consolidated Subsidiaries before any court or arbitrator or any
governmental body, agency or official, in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole or
which in any manner draws into question the validity of the Credit Agreement or
the Notes.
5. Each of the Borrower's Consolidated Subsidiaries is a corporation
or other entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and has all legal powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
Very truly yours,
2
<PAGE> 89
EXHIBIT G
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of March 31, 1994 among Morrison Knudsen
Corporation, a Delaware corporation, and Morrison Knudsen Corporation, an Ohio
corporation (the "Borrowers"), the banks listed on the signature pages thereof
(the "Banks") and Morgan Guaranty Trust Company of New York, as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(c) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and its Notes are within the Company's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement
of each Borrower and each Note of each Borrower constitutes a valid and binding
obligation of such
<PAGE> 90
Borrower, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware. In giving the foregoing opinion, (i) we have assumed,
without independent investigation, that the execution, delivery and performance
by MK-Ohio of the Credit Agreement and its Notes are within its corporate power
and have been duly authorized by all necessary corporate action and (ii) we
express no opinion as to the effect (if any) of any law of any jurisdiction
(except the State of New York) in which any Bank is located which limits the
rate of interest that such Bank may charge or collect.
We express no opinion as to the applicability (and, if
applicable, the effect) of Section 548 of the United States Bankruptcy Code or
any comparable provision of state law to the questions addressed above or the
conclusions expressed with respect thereto.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
2
<PAGE> 91
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of , 19 among [ASSIGNOR]
(the "Assignor"), [ASSIGNEE] (the Assignee"), MORRISON KNUDSEN CORPORATION, a
Delaware corporation (the "Company"), and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent (the "Agent"),
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of ______________, 1994
among the Company, Morrison Knudsen Corporation, a Delaware
Corporation, Morrison Knudsen Corporation, an Ohio Corporation,
the Assignor and the other Banks party thereto, as Banks, and the Agent
(the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers in an aggregate principal amount at
any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrowers by the Assignor
under the Credit Agreement in the aggregate principal amount of $_________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of
its Commitment thereunder in an amount equal to $______________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
<PAGE> 92
SECTION 2. Assignment. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Committed Loans made by the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor, the Assignee, the
Company and the Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor
on the date hereof in Federal funds the amount heretofore agreed between them.*
It is understood that commitment and/or facility fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under
the Credit Agreement which is for the account of the other party hereto, it
shall receive the same for the account of such other party to the extent of
such other party's interest therein and shall promptly pay the same to such
other party.
SECTION 4. Consent of the Company and the Agent. This Agreement
is conditioned upon the consent of the Company and the Agent pursuant to
Section 11.06(c) of the Credit Agreement. The execution of this Agreement by
the Company and the Agent is evidence of this consent.
- -----------------
* Amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may
be preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
3
<PAGE> 93
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrowers, or the validity and enforceability of the obligations of the
Borrowers in respect of the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance on the Assignor,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
[ASSIGNOR]
By
---------------------------
Title:
[ASSIGNEE]
By
---------------------------
Title:
MORRISON KNUDSEN CORPORATION
(a Delaware corporation)
By
---------------------------
Title:
4
<PAGE> 94
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------
Title:
5
<PAGE> 95
CONFORMED COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
dated as of
June 30, 1994
among
Morrison Knudsen Corporation,
a Delaware Corporation,
Morrison Knudsen Corporation,
an Ohio Corporation,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New
York, as Agent
<PAGE> 96
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of June 30, 1994 among MORRISON KNUDSEN
CORPORATION, a Delaware Corporation, MORRISON KNUDSEN CORPORATION, an Ohio
Corporation (the "Borrowers"), the BANKS listed on the signature pages hereof
(the "Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto have heretofore entered into a
Credit Agreement dated as of March 31, 1994 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as set
forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall from and after the date hereof refer
to the Agreement as amended hereby.
SECTION 2. Amendment of Section 5.10 of the Agreement. For
purposes of Section 5.10 of the Agreement, Consolidated Adjusted EBIT shall be
calculated without giving effect to the non-recurring charges to income for the
quarter ended June 30, 1994 in the aggregate pre-tax amount of $92,022,000
announced by the Company on July 19, 1994.
SECTION 3. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
<PAGE> 97
SECTION 4. Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective as of the date hereof when
the Agent shall have received duly executed counterparts hereof signed by the
Borrowers and the Required Banks (or, in the case of any party as to which an
executed counterpart shall not have been received, the Agent shall have
received telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
2
<PAGE> 98
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
MORRISON KNUDSEN CORPORATION
(a Delaware Corporation)
By /s/ Douglas L. Brigham
-------------------------------
Title: Treasurer
By /s/ James F. Cleary
-------------------------------
Title: Vice President
Finance & Planning
MORRISON KNUDSEN CORPORATION
(an Ohio Corporation)
By /s/ Douglas L. Brigham
-------------------------------
Title: Treasurer
By /s/ James F. Cleary
-------------------------------
Title: Vice President
Finance & Planning
3
<PAGE> 99
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Robert Bottamedi
------------------------------
Title: Vice President
J.P. MORGAN DELAWARE
By /s/ Philip S, Detjens
------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Richard J. Cerf
------------------------------
Title: Vice President
CONTINENTAL BANK
By /s/ Elizabeth M. Nolan
------------------------------
Title: Vice President
DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By /s/ Steven N. Warden
------------------------------
Title: Director
By /s/ J. Scott Jessup
------------------------------
Title: Vice President
4
<PAGE> 100
SOCIETY NATIONAL BANK
By /s/ Janice M. Cook
----------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
By /s/ Michael E. Keating
----------------------------
Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Robert Bottamedi
----------------------------
Title: Vice President
5
<PAGE> 101
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT dated as of November 30, 1994 among MORRISON KNUDSEN
CORPORATION, a Delaware Corporation, MORRISON KNUDSEN CORPORATION, an Ohio
Corporation (the "Borrowers"), the BANKS listed on the signature pages hereof
(the "Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a
Credit Agreement dated as of March 31, 1994 (as heretofore amended, the
"Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as set
forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions: References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall from and after the data hereof refer
to the Agreement as amended hereby.
SECTION 2. Amendment of Section 5.11 of the Agreement. The date
"January 1, 1992" in Section 5.11 of the Agreement is hereby changed to
"January 1, 1995".
SECTION 3. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 4. Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instruments. This Amendment shall become effective as of the date hereof when
the Agent shall have received duly executed counterparts hereof signed by the
Borrowers and the Required Banks (or, in the case of any party as to which an
executed
<PAGE> 102
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
MORRISON KNUDSEN CORPORATION
(a Delaware Corporation)
By /s/ D.L. BRIGHAM
--------------------------------------
Title:
MORRISON KNUDSEN CORPORATION
(an Ohio Corporation)
By /s/ D.L. BRIGHAM
--------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
--------------------------------------
Title:
J.P. MORGAN DELAWARE
By
--------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
--------------------------------------
Title:
2
<PAGE> 103
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
MORRISON KNUDSEN CORPORATION
(a Delaware Corporation)
By
--------------------------------------
Title:
MORRISON KNUDSEN CORPORATION
(an Ohio Corporation)
By
--------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ DAVID T. ELLIS
--------------------------------------
David T. Ellis
Title: Vice President
J.P. MORGAN DELAWARE
By
--------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
--------------------------------------
Title:
2
<PAGE> 104
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
MORRISON KNUDSEN CORPORATION
(a Delaware Corporation)
By
--------------------------------------
Title:
MORRISON KNUDSEN CORPORATION
(an Ohio Corporation)
By
--------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
--------------------------------------
Title:
J.P. MORGAN DELAWARE
By
--------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ RICHARD J. CERF
--------------------------------------
Title: Vice President
2
<PAGE> 105
CONTINENTAL BANK
By
------------------------------------
Title:
DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
------------------------------------
Title:
By
------------------------------------
Title:
SOCIETY NATIONAL BANK
By
------------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC
BY /s/ MICHAEL E. KEATING
------------------------------------
Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
------------------------------------
Title:
3
<PAGE> 106
CONTINENTAL BANK
By
------------------------------------
Title:
DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
------------------------------------
Title:
By
------------------------------------
Title:
SOCIETY NATIONAL BANK
By
------------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC
BY
------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ DAVID T. ELLIS
------------------------------------
David T. Ellis
Title: Vice President
3
<PAGE> 107
MELLON BANK, N.A.
By /s/ UNREADABLE SIGNATURE
------------------------------------
Title: First Vice President
DEUTSCHE BANK AG,
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By
------------------------------------
Title:
By
------------------------------------
Title:
SOCIETY NATIONAL BANK
By
------------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC
BY
------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
------------------------------------
Title:
3
<PAGE> 108
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of December, 1994 among BANK OF
AMERICA ILLINOIS, successor in interest to Continental Bank N.A.
(the "Assignor"), MELLON BANK, N.A. (the "Assignee"), MORRISON
KNUDSEN CORPORATION, a Delaware corporation (the "Company"),
MORRISON KNUDSEN CORPORATION, an Ohio Corporation, and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of March 31, 1994 as
amended among the Company, Morrison Knudsen Corporation, a Delaware
Corporation, Morrison Knudsen Corporation, an Ohio Corporation, the Assignor
and the other Banks party thereto, as Banks, and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor
has a Commitment to make Loans to the Borrowers in an aggregate principal
amount at any time outstanding not to exceed $25,000,000;
WHEREAS, Committed Loans made to the Borrowers by the Assignor
under the Credit Agreement in the aggregate principal amount of $25,000,000 are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of
the rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $25,000,000 (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1, Definitions, All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
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purchase from the Assignor of the corresponding portion of the principal
amount of the Committed Loans made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the Assignor, the
Assignee, the Company and the Agent and the payment of the amounts specified
in Section 3 required to be paid on the date hereof (i) the Assignee shall,
as of the date hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a Commitment in an
amount equal to the Assigned Amount, and (ii) the Commitment of the Assignor
shall, as of the date hereof, be reduced by a like amount and the Assignor
released from its obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee, The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments, As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.* It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee, Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
11.06(c) of the Credit Agreement. The execution of this Agreement by the
Company and the Agent is evidence of this consent.
SECTION 5. Non-Reliance on Assignor, The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrowers, or the validity and enforceability of the obligations of the
Borrowers in respect of the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance on the Assignor,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for
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* Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion
of any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
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Making its own independent appraisal of the business,
affairs and financial condition of the Borrower,
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
SECTION 7. Counterparts, This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF,, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
BANK OF AMERICA ILLINOIS,
as successor in interest to
Continental Bank N.A.
By /s/ MICHAEL J. DASHER
------------------------------------
Title: Vice President
MELLON BANK, N.A.
By /s/ [unreadable signature]
------------------------------------
Title: First Vice President
MORRISON KNUDSEN CORPORATION
(a Delaware corporation)
By /s/ D.L. BRIGHAM
------------------------------------
Title: VP & Treasurer
MORRISON KNUDSEN CORPORATION
(an Ohio corporation)
By /s/ D.L. BRIGHAM
------------------------------------
Title: VP & Treasurer
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MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ [unreadable signature]
-----------------------------------
Title:
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<PAGE> 1
Exhibit 4.4
================================================================================
STANDBY LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
Dated as of August 4, 1992
among
MORRISON KNUDSEN CORPORATION,
an Ohio corporation,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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ARTICLE I
DEFINITIONS........................ 1
1.01 Defined Terms............................................ 1
1.02 Other Definitional Provisions............................ 16
ARTICLE II
THE LETTER OF CREDIT.................... 17
2.01 The Letter of Credit Facility............................ 17
2.02 Amendment of Letter of Credit............................ 18
2.03 Participations, Drawings and
Reimbursements........................................... 19
2.04 Repayment of Participations.............................. 21
2.05 Role of the Issuing Bank................................. 22
2.06 Obligations Absolute..................................... 23
2.07 Cash Collateral Pledge................................... 24
2.08 Letter of Credit Fees.................................... 24
2.09 Additional Fees.......................................... 25
(a) Arrangement Fee..................................... 25
(b) Commitment Fees..................................... 25
2.10 Computation of Fees and Interest......................... 25
2.11 Payments by the Company.................................. 25
2.12 Payments by the Banks to the Agent....................... 26
2.13 Sharing of Payments, Etc................................. 27
2.14 Guaranty................................................. 27
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY.......... 27
3.01 Taxes.................................................... 27
3.02 Increased Costs and Reduction of Return.................. 31
3.03 Certificates of Banks.................................... 32
3.04 Survival................................................. 32
ARTICLE IV
CONDITIONS PRECEDENT................... 33
4.01 Conditions to the Effectiveness of this
Agreement................................................ 33
(a) Reimbursement Agreement............................. 33
(b) Guaranty............................................ 33
(c) Resolutions; Incumbency............................. 33
(d) Articles of Incorporation;
By-laws and Good Standing........................... 33
(e) Legal Opinions...................................... 34
(f) Payment of Fees..................................... 34
(g) Certificate......................................... 34
</TABLE>
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<TABLE>
<CAPTION>
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(h) Financial Statements................................ 35
(i) Compliance Certificate.............................. 35
(i) Other Documents..................................... 35
4.02 Conditions to Letter of Credit........................... 35
Amendments............................................... 35
(a) Request for Amendment............................... 35
(b) Continuation of Representations and
Warranties.......................................... 35
(c) No Existing Default................................. 35
ARTICLE V
REPRESENTATIONS AND WARRANTIES............. 35
5.01 Corporate Existence and Power............................ 36
5.02 Corporate Authorization; No
Contravention............................................ 36
5.03 Governmental Authorization............................... 37
5.04 Binding Effect........................................... 37
5.05 Litigation............................................... 37
5.06 No Default............................................... 38
5.07 ERISA Compliance......................................... 38
5.08 Use of Letter of Credit.................................. 40
5.09 Title to Properties...................................... 40
5.10 Taxes.................................................... 40
5.11 Financial Condition...................................... 40
5.12 Environmental Matters.................................... 41
5.13 Regulated Entities....................................... 42
5.14 No Burdensome Restrictions............................... 42
5.15 Solvency................................................. 42
5.16 Labor Relations.......................................... 42
5.17 Copyrights, Patents, Trademarks and
Licenses, Patents, etc................................... 43
5.18 Subsidiaries............................................. 43
5.19 Broker's or Transaction Fees............................. 43
5.20 Insurance................................................ 43
5.21 The Contract............................................. 43
5.22 Full Disclosure.......................................... 44
ARTICLE VI
AFFIRMATIVE COVENANTS................... 45
6.01 Financial Statements..................................... 45
6.02 Certificates; Other Information.......................... 46
6.03 Notices.................................................. 46
6.04 Preservation of Corporate Existence, Etc. ............... 48
6.05 Maintenance of Property.................................. 48
6.06 Insurance................................................ 48
6.07 Payment of Obligations................................... 49
6.08 Compliance with Laws..................................... 49
6.09 Inspection of Property and Books and
Records.................................................. 49
6.10 Environmental Laws....................................... 50
6.11 Use of the Letter of Credit.............................. 50
</TABLE>
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<TABLE>
<CAPTION>
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6.12 Solvency................................................. 50
6.13 Further Assurances....................................... 50
ARTICLE VII
NEGATIVE COVENANTS.................... 51
7.01 Limitation on Liens...................................... 51
7.02 Mergers, Consolidations, Purchases and
Sales.................................................... 52
7.03 Transactions with Affiliates............................. 53
7.04 Compliance with ERISA.................................... 54
7.05 Change in Business....................................... 54
7.06 Change in Structure...................................... 54
7.07 Accounting Changes....................................... 54
7.08 Other Contracts.......................................... 55
7.09 Current Ratio............................................ 55
7.10 Consolidated Tangible Net Worth.......................... 55
7.11 Indebtedness to Tangible Net Worth Ratio................. 55
7.12 Funded Debt to Tangible Net Worth Ratio.................. 55
7.13 Interest Coverage Ratio.................................. 55
ARTICLE VIII
EVENTS OF DEFAULT.................... 55
8.01 Event of Default......................................... 55
(a) Non-Payment......................................... 56
(b) Representation or Warranty.......................... 56
(c) Other Defaults...................................... 56
(d) Non-Payment of Other Indebtedness................... 56
(e) Acceleration of Other Indebtedness.................. 56
(f) Other Obligations................................... 56
(g) Bankruptcy or Insolvency............................ 57
(h) Involuntary Proceedings............................. 57
(i) ERISA............................................... 57
(j) Monetary Judgments.................................. 58
(k) Non-Monetary Judgments.............................. 58
(1) Loss of Licenses.................................... 58
(m) Change in Control................................... 58
(n) Guarantor Defaults.................................. 59
8.02 Remedies................................................. 59
8.03 Rights Not Exclusive..................................... 59
8.04 HLT Status............................................... 60
ARTICLE IX
THE AGENT......................... 60
9.01 Appointment and Authorization............................ 60
9.02 Delegation of Duties..................................... 60
9.03 Liability of Agent....................................... 60
</TABLE>
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9.04 Reliance by Agent........................................ 61
9.05 Notice of Default........................................ 62
9.06 Credit Decision.......................................... 62
9.07 Indemnification.......................................... 63
9.08 Agent in Individual Capacity............................. 63
9.09 Successor Agent.......................................... 63
9.10 Collateral Matters....................................... 64
ARTICLE X
MISCELLANEOUS....................... 65
10.01 Amendments and waivers................................... 65
10.02 Notices.................................................. 66
10.03 No Waiver; Cumulative Remedies........................... 67
10.04 Costs, Expenses and Certain Fees......................... 67
10.05 Indemnity................................................ 68
10.06 Marshalling; Payments Set Aside.......................... 68
10.07 Successors and Assigns................................... 68
10.08 Assignments, Participations, etc. ....................... 68
10.09 Set-off.................................................. 71
10.10 Notification Addresses, Lending
Offices, Etc. ........................................... 71
10.11 Counterparts............................................. 71
10.12 Severability............................................. 71
10.13 Time..................................................... 71
10.14 Governing Law and Jurisdiction........................... 72
10.15 Waiver of Jury Trial..................................... 72
10.16 Entire Agreement......................................... 72
10.17 Interpretation........................................... 73
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT
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<S> <C>
Exhibit 2.01 - Form of Letter of Credit
Exhibit 2.07 - Form of Pledge and Security Agreement
Exhibit 2.14 - Form of Guaranty
Exhibit 4.01(e)(1) - Form of Opinion of the Company's Counsel
Exhibit 4.01(e)(2) - Form of Opinion of Jones, Day Reavis &
Pogue
Exhibit 4.01(e)(3) - Form of Opinion Jenner & Block
Exhibit 6.01(d) - Form of Compliance Certificate
Exhibit 7.02 - Description of Burlington Northern
Receivables Transaction
Exhibit 10.08 - Form of Assignment and Acceptance Agreement
</TABLE>
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<TABLE>
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SCHEDULES
Schedule 5.05 - Litigation
Schedule 5.07 - ERISA Matters
Schedule 5.09 - Liens in Excess of $5,000,000
Schedule 5.12 - Environmental Matters
Schedule 5.17 - Claims or Litigation Concerning Copyrights,
Patents, etc.
Schedule 5.18(a) - List of Subsidiaries of the Company
Schedule 5.18(b) - Equity Investments of the Company
Schedule 5.18(c) - List of Subsidiaries of the Guarantor
Schedule 5.18(d) - Equity Investments of the Guarantor
</TABLE>
v
<PAGE> 7
STANDBY LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
This Standby Letter of Credit and Reimbursement Agreement, is entered
into as of August 4, 1992, among Morrison Knudsen Corporation, an Ohio
corporation (the "Company"), the several financial institutions parties to
this Agreement (collectively, the "Banks"; individually, a "Bank"), and Bank of
America National Trust and Savings Association, as agent for the Banks (the
"Agent").
Preliminary Statement
The Issuing Bank has issued a letter of credit for the benefit of
Metra and for the account of the Company, which letter of credit is in the form
of Exhibit 2.01. The Banks desire to participate in such letter of credit on
the terms set forth herein, and the Company desires that such letter of credit
be subject to the provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Defined Terms. In addition to the terms defined elsewhere in
this Agreement, the following terms have the following meanings:
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed to
control another Person if the controlling Person possesses, directly
or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of 5%
or more of the equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person.
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<PAGE> 8
"Agent" means Bank of America National Trust and Savings
Association in its capacity as agent for the Banks hereunder, and any
successor agent.
"Agent's Payment Office" means the address for payments set
forth on the signature pages hereto in relation to the Agent.
"Agent-Related Persons" has the meaning specified in Section
9.03.
"Aggregate Commitment" means the combined Commitments of the
Banks, in the amount of One Hundred Ninety Million Dollars
($190,000,000).
"Agreement" means this Standby Letter of Credit and
Reimbursement Agreement, as amended, supplemented or modified from
time to time.
"Amendment Application" has the meaning given to it in
Section 2.02(a).
"Assignee" has the meaning specified in Section 10.08.
"Assignment and Acceptance" has the meaning specified in
Section 10.08(a).
"Available Amount" means, at any time, (i) as of the date
hereof, the Initial Amount, and (ii) subsequent to the date hereof,
any existing Available Amount, as such amount may be increased or
decreased in accordance with the provisions of Section 2.01(c).
"Bank Affiliate" means a Person engaged primarily in the
business of commercial banking and that is a subsidiary of a Bank or
of a Person of which a Bank is a Subsidiary, which Person has combined
capital and surplus in excess of $200,000,000 or the equivalent in
other currencies.
"Banks" has the meaning given to it in the first paragraph of
this Agreement.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by law to close.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other
2
<PAGE> 9
Governmental Authority, or any other law, rule or regulation, whether
or not having the force of law, regarding capital adequacy of any bank
or of any corporation controlling a bank.
"Capital Lease Obligations" means all monetary obligations of
a Person or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, is classified as a capital
lease.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Change in Control" shall have occurred if (i) any person or
group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d promulgated by
the Securities and Exchange Commission under said Act) of 35% or more
of the outstanding shares of common stock of the Guarantor, or (ii)
the Company ceases to be a wholly-owned subsidiary of the Guarantor,
or (iii) during any period of twelve consecutive calendar months
commencing after the date of this Agreement, individuals who were
directors of the Guarantor on the first day of such period shall cease
to constitute a majority of the board of directors of the Guarantor.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, for each Bank, the commitment of such Bank
to issue (in the case of the Issuing Bank) or participate in the
Letter of Credit and to make L/C Advances in an aggregate amount equal
to such Bank's Commitment Amount. "Commitments" means the commitments
of the Banks to issue (in the case of the Issuing Bank) or participate
in the Letter of Credit and to make L/C Advances, in the aggregate
amount for all Banks of $190,000,000 as further set forth in Article
II.
"Commitment Amount" for a Bank means the amount set forth as
the "Commitment Amount" for such Bank on the signature page for such
Bank hereto.
"Commitment Percentage" means, as to any Bank, the percentage
equivalent of such Bank's Commitment divided by the Aggregate
Commitment.
3
<PAGE> 10
"Company" means Morrison Knudsen Corporation, an Ohio
corporation.
"Compliance Certificate" means a certificate of a Responsible
Officer substantially in the form of Exhibit 6.01(d).
"Consolidated Current Assets" means, as of any date of
determination, all amounts which would, in accordance with GAAP, be
included under current assets on a consolidated balance sheet of the
Guarantor and its Subsidiaries; provided, however, that such amounts
shall not include (a) any amounts for any Indebtedness owing by an
Affiliate of the Guarantor, unless such Indebtedness arose in
connection with the sale of goods or other property in the ordinary
course of business and would otherwise constitute current assets in
conformity with GAAP, (b) the equity value of any shares of stock
issued by an Affiliate of the Guarantor, (c) the cash surrender value
of any life insurance policy or (d) any consolidated intangibles.
"Consolidated Current Liabilities" means, as of any date of
determination, all amounts which would, in accordance with GAAP, be
included under current liabilities on a consolidated balance sheet of
the Guarantor and its Subsidiaries, but in any event including amounts
of (a) all Indebtedness of the Guarantor or any of its Subsidiaries
payable on demand or, at the option of the Person to whom the
Indebtedness is owed, not more than twelve months after such date, (b)
any payments in respect of any Indebtedness of the Guarantor or any of
its Subsidiaries (whether installment, serial maturity or sinking fund
payments or otherwise) required to be made not more than twelve months
after that date, and (c) all reserves in respect of liabilities or
Indebtedness payable on demand or, at the option of the Person to whom
the Indebtedness is owed, not more than twelve months after that date,
the validity of which is contested at that date.
"Consolidated Funded Debt" of the Guarantor means, on a
consolidated basis, without duplication, all Indebtedness of the
Guarantor and its Subsidiaries, except and excluding any Indebtedness
guaranteed by the Guarantor or any of its Subsidiaries and any other
obligations and liabilities included in the definition of
"Indebtedness" solely and exclusively because of the application of
(i) (b), (ii) or (v) of the definition of Indebtedness, contingent
reimbursement obligations letter of credit.
"Consolidated Interest Expense" means, for any period, the
consolidated interest expense for the period for the
4
<PAGE> 11
Guarantor and its Subsidiaries, as determined in accordance with GAAP.
"Consolidated Operating Income" means the consolidated net
income of the Guarantor and its Subsidiaries less any gains on the
sale or other disposition of investments or any extraordinary or
nonrecurring items of income to the extent that the aggregate of all
such gains and extraordinary or nonrecurring items of income exceeds
the aggregate of losses on such sale or other disposition and
extraordinary or nonrecurring charges; provided, that gain on sale of
fixed assets included in Consolidated Operating Income shall be
limited to $10,000,000 in any four quarter period.
"Consolidated Tangible Net Worth" means the excess of (a) the
sum of (i) the par value (or value stated on the books of the
Guarantor) of the capital stock of all classes of the Guarantor plus
(or minus in the case of a deficit) (ii) the amount of the
consolidated surplus, whether capital or earned, of the Guarantor and
its Subsidiaries, over (b) the sum of treasury stock, unamortized debt
discount and expense, trademarks, trade names, patents, patent
applications, copyrights, goodwill and other intangible assets, and
any write-up of the value of any assets after January 1, 1992, all
determined on a consolidated basis for the Guarantor and its
Subsidiaries in accordance with GAAP, plus the cumulative charges from
adopting FAS 106, Employers' Accounting for Postretirement Benefits
Other Than Pensions (but not exceeding $25,000,000), less the
cumulative charges that would have been recorded on the cash "pay as
you go" method previously employed, and with respect to such
cumulative charges, net of tax provisions calculated on a book basis.
"Contract" has the meaning given to it in Section 6.11.
"Contractual Obligations" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or
by which it or any of its property is bound.
"Controlled Group" means the Guarantor and all Persons
(whether or not incorporated) under common control or treated as a
single employer with the Guarantor or any of its Subsidiaries pursuant
to Section 414(b), (c), (m) or (o) of the Code.
"Date of Maximum Availability" means the earliest date on
which the Available Amount becomes $190,000,000.
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<PAGE> 12
"Default" means any event which, with the giving of notice,
the lapse of time, or both, would constitute an Event of Default.
"documents" includes any and all instruments, documents,
agreements, certificates and other writings, however evidenced.
"dollars" and "$" means lawful money of the United States.
"Domestic Lending Office" means, with respect to each Bank,
the office of that Bank designated as such in the signature pages
hereto or such other office of the Bank as it may from time to time
specify to the Company and the Agent.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having
combined capital and surplus of at least $200,000,000; (b) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, having
combined capital and surplus of at least $200,000,000, or the
equivalent in other currencies, provided that such bank is acting
through a branch or agency located in the United States; or (c) a Bank
Affiliate.
"Environmental Claim" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law or
for release or injury to the environment or threat to public health,
personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup, removal,
remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based
upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent,
sudden or non-sudden, accidental or non-accidental placement, spills,
leaks, discharges, emissions or releases) of any Hazardous Material
at, in or from property, whether or not owned by the Company, the
Guarantor, or any of the Guarantor's Subsidiaries, or (b) any other
circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative
6
<PAGE> 13
orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each
case relating to environmental, health, safety and land use matters;
including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Solid Waste Disposal Act, the
Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Emergency Planning and Community Right-to-Know Act,
the California Hazardous Waste Control Law, the California Solid Waste
Management, Resource, Recovery and Recycling Act, the California Water
Code and the California Health and Safety Code.
"Environmental Permits" has the meaning given to it in Section
5.12(b).
"ERISA" means the Employee Retirement Income Security Act of
1974 and any regulation promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Guarantor or any
Subsidiary of the Guarantor within the meaning of Section 414(b),
414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
Qualified Plan or a Multiemployer Plan; (b) a withdrawal by any member
of the Controlled Group from a Qualified Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA); (c) a complete or partial
withdrawal by any member of the Controlled Group from a Multiemployer
Plan; (d) the filing of a notice of intent to terminate, the treatment
of a plan amendment as a termination under Section 4041 or 4041A of
ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e)
a failure to make required contributions to a Qualified Plan or
Multiemployer Plan; (f) an event or condition which might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Qualified Plan or Multiemployer Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group; (h) an application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Code with respect to any Qualified Plan; (i) any member of the
Controlled Group engages in or otherwise becomes liable for a
non-exempt prohibited transaction; or (j) a violation of the
applicable requirements of Section 404 or 405 of ERISA or the
exclusive benefit rule under Section 401(a) of the Code by any
fiduciary with respect to any Qualified Plan for which the Guarantor
or any of its Subsidiaries may be directly or indirectly liable.
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<PAGE> 14
"Event of Default" means any of the events specified in
Section 8.01.
"Federal Funds Rate" means 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 of determination (or if such day of determination 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 transaction received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereof.
"Form 4224" has the meaning given to it in Section 3.01(f)(i).
"Form 1001" has the meaning given to it in Section 3.01(f)(i).
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), or in such other
statements by such other entity as may be in general use by
significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantor" means Morrison Knudsen Corporation, a Delaware
corporation.
"Guaranty" has the meaning given to it in Section 2.14.
"Guaranty Obligations" of a Person means, without duplication,
all obligations and liabilities of such Person, absolute or
contingent, due or to become due, now existing or hereafter arising,
under: (i) any guaranty or other instrument, document or agreement
whereby such Person becomes or is a guarantor or surety of, or
otherwise becomes or is
8
<PAGE> 15
responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance
any funds, assets, goods or services, or otherwise) with respect to,
any undertaking of any other Person, or (ii) any agreement to purchase
stock of, to make any other equity investment in, or to make advances
to, any other Person; excluding, however, (x) the endorsement, in the
ordinary course of collection, of instruments payable to it or its
order, and (y) any guaranty of performance entered into in the
ordinary course of business and not involving any Lien on any asset of
the Guarantor or any of its Subsidiaries.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, waste, solid waste,
hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or
petroleum derived substance or waste.
"HLT" has the meaning given to it in Section 8.04.
"HLT Rates" has the meaning given to it in Section 8.04.
"Indebtedness" of the Guarantor means, on a consolidated basis
and without duplication:
(i) any obligation of the Guarantor for borrowed
money, including, without limitation, (a) any obligation of
the Guarantor evidenced by bonds, debentures, notes or other
similar debt instruments, (b) any Indebtedness guaranteed by
the Guarantor and any other Guaranty obligations of the
Guarantor, and (c) any obligation for borrowed money which is
non-recourse to the Guarantor but which is secured by a Lien
on any asset of the Guarantor (limited, however, to the lesser
of: (x) the amount of the debt secured, and (y) the greater of
fair market or book value of the assets subject to the Lien);
(ii) any obligation of the Guarantor for the
deferred purchase price of any property or services, except
Trade Accounts Payable;
(iii) any Capital Lease Obligations of the Guarantor
and obligations of the Guarantor under any Rate Contract;
(iv) any reimbursement obligation of the Guarantor
with respect to any letter of credit, whether such
reimbursement obligation is absolute or contingent, matured or
unmatured; and
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<PAGE> 16
(v) any Indebtedness of any other Person secured
by a Lien on any asset of the Guarantor, whether or not such
Indebtedness is assumed by the Guarantor (limited, however, to
the lesser of: (x) the amount of the debt secured, and (y) the
greater of fair market or book value of the assets subject to
such Lien).
For all purposes of this definition:
(a) the Indebtedness shall include a portion of the
Indebtedness of any partnership or joint venture in which the
Guarantor is a general partner or a joint venturer equal to a ratable
share of such Indebtedness based on respective percentage ownership or
equity interests of the Guarantor and other general partners or joint
venturers;
(b) in the instance of non-recourse debt of a partnership
or joint venture in which the Guarantor is a general partner or joint
venturer, the portion of such debt included in Indebtedness shall be
limited to the lesser of (i) the ratable share described in (a) above,
and (ii) the Guarantor's total equity interest (whether paid in
capital, partnership contribution, capital surplus or partnership
profits) in such partnership or joint venture; and
(c) in the instance of non-recourse debt of a New
Subsidiary, the portion of such non-recourse debt included in
Indebtedness shall be limited to the lesser of (x) a ratable share of
such non-recourse debt based on respective percentage ownership or
equity interest of the Guarantor (direct or indirect) and other equity
owners of such New Subsidiary, and (y) the Guarantor's direct or
indirect total equity interest (whether paid in capital, retained
earnings, capital surplus or other book equity) in such New
Subsidiary; and
(d) as used in this definition, references to the
Guarantor shall include the consolidated Subsidiaries of the
Guarantor.
"Indemnified Person" has the meaning specified in subsection
10.05.
"Indemnified Liabilities" has the meaning specified in
subsection 10.05.
"Initial Amount" means $20,239,000.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating
to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors
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<PAGE> 17
or other, similar arrangement; in each case (a) and (b) under U.S.
Federal, State or foreign law.
"Issuing Bank" means BofA, in its capacity as issuer of the
Letter of Credit.
"L/C Advance" means each Bank's Commitment Percentage of any
L/C Borrowing.
"L/C Borrowing" means an extension of credit resulting from a
drawing under the Letter of Credit which shall not have been
reimbursed on the date when made.
"L/C Indebtedness" means, for the Guarantor and its
Subsidiaries on a consolidated basis, any reimbursement obligation of
the Guarantor or any of its Subsidiaries with respect to any letter of
credit or any obligation under any agreements or documents relating
thereto, whether any of such obligation is absolute or contingent,
matured or unmatured.
"L/C Related Document" means any of this Agreement, the Letter
of Credit, the Guaranty, or any document or agreement relating to the
Letter of Credit or this Agreement.
"Lending Office" means, with respect to any Bank, the office
or offices of the Bank specified as its "Lending Office" or "Domestic
Lending Office" or "Eurodollar Lending Office", as the case may be,
opposite its name on the signature pages hereto, or such other office
or offices of the Bank as it may from time to time specify to the
Company and the Agent.
"Letter of Credit" has the meaning given to it in Section
2.01(a).
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or other) or preference, priority or other security
interest or preferential arrangement of any kind or nature whatsoever
(including, without limitation, those created by, arising under or
evidenced by any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease Obligation, any
financing lease having substantially the same economic effect as any
of the foregoing, or 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 contingent or other agreement to
provide any of the foregoing.
"Maiority Banks" means at any time Banks holding at least
66-2/3% of the Commitments.
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<PAGE> 18
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (i) a material adverse change
in, or a material adverse effect upon, any of (a) the operations,
business, properties, condition (financial or otherwise) or prospects
of the Company or the Company and its Subsidiaries taken as a whole;
(b) the ability of the Company to perform under any L/C Related
Document; or (c) the legality, validity, binding effect or
enforceability of any L/C Related Document; or (ii) a material adverse
change in, or a material adverse effect upon, any of (a) the
operations, business, properties, condition (financial or otherwise)
or prospects of the Guarantor or the Guarantor and its Subsidiaries
taken as a whole; (b) the ability of the Guarantor to perform under
any L/C Related Document; or (c) the legality, validity, binding
effect or enforceability of any L/C Related Document.
"Maximum Amount" means, at a time, (i) $190,000,000, less
(ii) the aggregate of all drawings under the Letter of Credit which
have occurred at or prior to such time, plus the aggregate amount of
all amounts specified in Reduction Certificates which are in effect at
or prior to such time.
"Metra" means the Commuter Rail Division of the Regional
Transportation Authority, an Illinois corporation.
"Mortgage" means any deed of trust, mortgage or other document
creating a Lien on real property or any interest in real property.
"Multiemployer Plan" means a "multiemployer plan" (within the
meaning of Section 4001(a)(3) of ERISA) and to which any member of the
Controlled Group makes, is making, or is obligated to make
contributions or has made, or been obligated to make, contributions.
"New Subsidiary" means a corporate Subsidiary (direct or
indirect) of the Guarantor, which has (i) been incorporated after the
date of this Agreement, and (ii) has been identified and designated as
a "New Subsidiary" by the Company to the Agent in writing.
"Notice Bank" has the meaning given to it in Section 3.05.
"Notice of Lien" means any "notice of lien" or similar
document intended to be filed or recorded with any court, registry,
recorder's office, central filing office or Governmental Authority for
the purpose of evidencing, creating, perfecting or preserving the
priority of a Lien securing obligations owing to a Governmental
Authority.
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<PAGE> 19
"Obligations" means all Indebtedness, advances, debts,
liabilities, obligations, covenants and duties owing by the Company to
any Bank, the Agent, or any other Person required to be indemnified
under any L/C Related Document, of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other
instrument, arising under this Agreement, under any other L/C Related
Document, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification or
in any other manner, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired.
"OECD" has the meaning given to it in the definition of the
term "Eligible Assignee."
"Ordinary Course of Business" means, in respect of any
transaction involving the Guarantor or any subsidiary of the
Guarantor, the ordinary course of such Person's business,
substantially as conducted by any such Person prior to or as of the
Closing Date, and undertaken by such Person in good faith and not for
purposes of evading any covenant or restriction in any L/C Related
Document.
"Other Taxes" has the meaning specified in subsection 3.01(b).
"Outstanding Amount" means, at any time, the aggregate of (a)
the outstanding principal amount of L/C Borrowings; (b) the Available
Amount; and (c) the maximum reasonably anticipated obligation of the
Company with respect to contingent, disputed, or unliquidated
obligations of the Company hereunder, excluding the undrawn amount of
the Letter of Credit.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in subsection
10.08(d).
"Participation Date" has the meaning given to it in Section
2.03(c).
"Permitted Liens" has the meaning given to it in Section 7.01.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Company, the Guarantor or
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<PAGE> 20
any member of the Controlled Group sponsors or maintains or to which
the Company, the Guarantor, or member of the Controlled Group makes or
is obligated to make contributions, and includes any Multiemployer
Plan or Qualified Plan.
"Property" means any estate or interest in any kind of
property or asset, whether real, personal or mixed, and whether
tangible or intangible.
"Qualified Plan" means a pension plan (as defined in Section
3(2) of ERISA) intended to be tax-qualified under Section 401(a) of
the Code and which any member of the Controlled Group sponsors,
maintains, or to which it makes or is obligated to make contributions,
or in the case of a multiple employer plan (as described in Section
4064(a) of ERISA) has made contributions at any time during the
immediately preceding period coveting at least five (5) plan years,
but excluding any Multiemployer Plan.
"Rate Contract" means interest rate and currency swap
agreements, cap, floor and collar agreements, interest rate insurance,
currency spot and forward contracts and other agreements or
arrangements designed to provide protection against fluctuations in
interest or currency exchange rates.
"Reduction Certificate" means a certificate submitted to the
Issuing Bank pursuant to the Letter of Credit, which certificate is in
the form and substance of Annex C of Exhibit 2.01, with appropriate
insertions.
"Reference Rate" means the higher of:
(a) the rate of interest publicly announced from
time to time by BofA in San Francisco, California, as its
reference rate. It is a rate set by BofA based upon various
factors including BofA's costs and desired return, general
economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced
at, above, or below such announced rate; and
(b) one-half percent per annum above the Federal
Funds Rate.
Any change in the reference rate announced by BofA shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Replacement Bank" has the meaning given to it in Section 3.05.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, a withdrawal
from a Plan described in Section 4063 of ERISA,
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<PAGE> 21
or a cessation of operations described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its Property is subject.
"Responsible Officer means, for the Company or the Guarantor,
the Chief Executive Officer or the President of the Company or the
Guarantor, as appropriate, and with respect to financial matters, the
Chief Financial Officer or the Treasurer of the Company or the
Guarantor, as appropriate.
"Sale Limit" has the meaning given to it in Section 7.02.
"Solvent" means, as to any Person at any time, that (i) the
fair value of the property of such Person is greater than the amount
of such Person's liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(31) of the United States
Bankruptcy Code (12 U.S.C. Section 101 et seq.); (ii) the present fair
saleable value of the property of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured; (iii) such
Person is able to realize upon its property and pay its debts and
other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (iv)
such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature; and (v) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute
unreasonably small capital.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than
50% of the voting stock or other equity interests is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof.
"Taxes" has the meaning specified in subsection 3.01(a).
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<PAGE> 22
"Termination Date" means the date on which the Letter of
Credit expires, matures, or terminates, but in any event not later
than September 30, 1995.
"Trade Accounts Payable" of a Person means trade accounts
payable of such Person with a maturity of not greater than 90 days
incurred in the ordinary course of such Person's business.
"Transferee" has the meaning specified in subsection 10.08(e).
"UCC" means the Uniform Commercial Code as in effect in any
jurisdiction.
"Unavailable Portion" means, at any time, the Maximum Amount
at such time less the Available Amount at such time.
"Unfunded Pension Liabilities" of a Plan means the excess of
the present value of the Plan's accrued benefits, as defined in
Section 3(23) of ERISA, over the current value of that Plan's assets,
as defined in Section 3(26) of ERISA.
"United States" and "U.S." each means the United States of
America.
"Withdrawal Liabilities" means, as of any determination date,
the aggregate amount of the liabilities, if any, pursuant to Section
4201 of ERISA if the Controlled Group made a complete withdrawal from
all Multiemployer Plans and any increase in contributions pursuant to
Section 4243 of ERISA.
1.02 Other Definitional Provisions.
(a) Unless otherwise specified herein or therein, all
terms defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto.
(b) All accounting terms not expressly defined herein
shall be construed, except where the context otherwise requires, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section, schedule and exhibit references are to this Agreement unless otherwise
specified. The meaning of defined terms shall be equally applicable to the
singular and
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<PAGE> 23
plural forms of the defined terms. The term "including" is not
limiting and means "including without limitation".
(d) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding," and the
word "through" means "to and including."
(e) References to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any L/C Related Document.
(f) References to statutes or regulations are to be
construed as including all statutory and regulatory provisions consolidating,
amending or replacing the statute or regulation.
(g) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
ARTICLE II
THE LETTER OF CREDIT
2.01 The Letter of Credit Facility.
(a) The Issuing Bank has issued a letter of credit for
the benefit of Metra and for the account of the Company in the form of Exhibit
2.01 (said letter of credit, as amended from time to time, is referred to
herein as the "Letter of Credit"). The face amount of the Letter of Credit is
the Available Amount. The Letter of Credit shall have an expiry, termination
or maturity date as set forth therein, but in any event not later than
September 30, 1995.
(b) Subject to the terms and conditions set forth herein,
the Issuing Bank agrees to amend the Letter of Credit in accordance with the
provisions of Section 2.02, and to honor demands for payment under the Letter
of Credit in accordance with the terms of the Letter of Credit. Demands for
payment under the Letter of Credit shall be in the form and substance of Annex
A of Exhibit 2.01.
(c) The Available Amount shall initially be the Initial
Amount. The Available Amount shall be reduced (i) by any and all drawings
under the Letter of Credit, and (ii) upon the effectiveness of any Reduction
Certificate as set forth in the Letter of Credit, by the amount specified in
such Reduction
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<PAGE> 24
Certificate. The Available Amount may be increased by amendment
of the Letter of Credit, as set forth in Section 2.02, provided that in no
event shall the Available Amount exceed the Maximum Amount.
(d) Subject to the terms and conditions set forth herein,
the Banks severally agree to participate in the Letter of Credit.
2.02 Amendment of Letter of Credit.
(a) From time to time on and prior to the Date of Maximum
Availability and while the Letter of Credit is outstanding, the Issuing Bank
will, subject to the terms and conditions set forth herein, upon the written
request of the Company delivered to the Agent (and the Agent will deliver a
copy to the Issuing Bank), which request shall be in form and substance
satisfactory to the Agent and the Issuing Bank (an "Amendment Application"),
amend the Letter of Credit solely to increase the Available Amount, provided
that in no event shall such amendment provide for an Available Amount in excess
of the Maximum Amount; and Provided further that the Issuing Bank shall be
under no obligation to amend the Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Bank from amending the Letter of
Credit, or there exists any action or other proceeding against the
Issuing Bank by any Person, whether for damages or injunctive relief,
related to or arising out of this Agreement, the Letter of Credit, or
any of the transactions contemplated hereby, or any Requirement of Law
applicable to the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the issuance or amendment of letters of
credit generally or the Letter of Credit in particular or shall impose
upon the Issuing Bank with respect to the Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated) not in effect on the Closing Date
and which results in an unreimbursed (from the Company) loss, cost, or
expense that the Issuing Bank in good faith deems material, or shall
impose upon the Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the Issuing
Bank in good faith deems material to it;
(ii) the Issuing Bank has received written notice
from any Bank, the Agent or the Company, on or prior to the Business
Day prior to the requested date of amendment of the
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<PAGE> 25
Letter of Credit, that one or more of the applicable conditions
contained in Section 4.02(b) or (c) is not then satisfied;
(iii) the amendment to the Letter of Credit is not
in form and substance acceptable to the Issuing Bank;
(iv) the Issuing Bank would have no obligation at
such time to make such an amendment to the Letter of Credit under the
terms of this Agreement; or
(v) the beneficiary of the Letter of Credit does
not accept the Letter of Credit as amended.
(b) Unless the Issuing Bank has received notice on or
before the Business Day immediately preceding the date the Issuing Bank is to
amend the Letter of Credit (A) from the Agent directing the Issuing Bank not to
issue such amendment to the Letter of Credit because such amendment would cause
the Available Amount to exceed the Maximum Amount; or (B) from the Agent or any
Bank that one or more applicable conditions specified in Section 4.02(b) or (c)
are not then satisfied; then, subject to the terms and conditions hereof, the
Issuing Bank will, on the requested date, amend the Letter of Credit in
accordance with the Issuing Bank's usual and customary business practices.
(c) The Agent will promptly (i) notify the Banks of the
receipt by it of any Amendment Application and the amount of increase in the
Available Amount requested therein, and (ii) deliver to each Bank a copy of
such amendment.
2.03 Participations, Drawings and Reimbursements.
(a) Immediately upon the effectiveness of this Agreement
and upon each amendment of the Letter of Credit pursuant to Section 2.02, each
Bank (other than the Issuing Bank) shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Bank a participation
in the Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Commitment Percentage of such Bank, times (ii) the Available
Amount of the Letter of Credit at the time of such issuance or amendment;
provided that the amount of each Bank's participation shall not exceed such
Bank's Commitment Amount.
(b) The Company shall reimburse the Issuing Bank for the
full amount of any drawing under the Letter of Credit. The Company shall
notify the Agent by 10:00 a.m. (San Francisco time) on the date of a drawing
under the Letter of Credit whether the Company will reimburse the Issuing Bank
in full on the date of such drawing, and the Agent shall promptly notify
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<PAGE> 26
the Banks of the amount of such drawing and the contents of such notice. If the
Company notifies the Agent prior to such time that it will reimburse the
Issuing Bank in the full amount of such drawing on the date of such drawing,
then the Company shall pay to the Issuing Bank the full amount of such drawing
no later than 11:00 a.m. (San Francisco time) on the date of such drawing. In
the event that the Company does not so notify the Agent by 10:00 a.m. (San
Francisco time) on the date of such drawing that it intends to reimburse such
drawing on such date, or in the event that the Company fails to reimburse the
Issuing Bank the full amount of any drawing by 11:00 a.m. (San Francisco time)
on the date of such drawing, then the Company shall be deemed to have incurred
an L/C Borrowing in the principal amount of such drawing, and the Issuing Bank
shall be deemed to have made a loan to the Company in the principal amount of
such drawing (provided that no L/C Borrowing shall be permitted, and the full
amount of each drawing shall be immediately reimbursed to the Issuing Bank, if
any Default or Event of Default shall have occurred and be continuing). Each
L/C Borrowing shall be due and payable on demand made by the Agent (together
with interest from the date of such drawing) and shall bear interest until
such demand at a rate per annum equal to the Reference Rate plus one percent
(1.0%), provided, however, that at least one day of such interest on the amount
of such drawing shall be payable even if the Company reimburses the Issuing
Bank, on the date of such drawing, in the full amount of such drawing. The
Agent shall demand payment in full of each L/C Borrowing on the Business Day
immediately following the drawing under the Letter of Credit which gave rise to
such L/C Borrowing, unless the date for such demand is extended by the Banks in
accordance with the provisions of Section 10.01(b). Any notice given by the
Issuing Bank or the Agent pursuant hereto may be oral if immediately confirmed
in writing (including by facsimile).
(c) Each Bank will, upon receipt of any notice pursuant
to subsection 2.03(b) of an L/C Borrowing or other unreimbursed drawing under
the Letter of Credit, make available to the Agent for the account of the
Issuing Bank an amount in immediately available funds equal to such Bank's
Commitment Percentage of the amount of the relevant drawing, whereupon the
participating Banks shall each be deemed to have made a payment in satisfaction
of its participation obligation under subsection 2.03(a). If any Bank is
notified by 11:00 a.m. (San Francisco time) on the date of a drawing that there
has been a drawing under the Letter of Credit and that the Company intends to
or will incur an L/C Borrowing, then such Bank shall make available to the
Agent for the account of the Issuing Bank, no later than 1:00 p.m. (San
Francisco time) on the date of such drawing, such Bank's Commitment Percentage
of such L/C Borrowing. If a Bank is notified of a drawing after 11:00 a.m.
(San Francisco time) on the date of such drawing, then such Bank shall make
available to the Agent for the account of the Issuing Bank such Bank's
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Commitment Percentage of such L/C Borrowing no later than 1:00 p.m. (San
Francisco time) on the Business Day immediately following the date of such
drawing. If any Bank notified (at any time) of any L/C Borrowing shall fail,
for any reason whatsoever, to make available to the Agent for the account of
the Issuing Bank the amount of such Bank's Commitment Percentage of such L/C
Borrowing by no later than 1:00 p.m. (San Francisco time) on the date such
drawing was honored by the Issuing Bank (the "Participation Date" with respect
to such drawing), then interest shall accrue on such Bank's obligation to make
such payment, for the account of the Issuing Bank, from the Participation Date
through the date which is one Business Day after the date such drawing was
honored by the Issuing Bank, at a rate per annum equal to the Federal Funds
Rate in effect from time to time. The Agent will promptly give notice to the
Banks of the occurrence of the Participation Date, but failure of the Agent to
give any such notice on the Participation Date or in sufficient time to enable
any Bank to effect such payment on such date shall not relieve such Bank from
its obligations under this Section 2.03 to purchase and pay for a participation
in the drawing giving rise to such Participation Date.
(d) IN DETERMINING WHETHER TO PAY UNDER THE LETTER OF
CREDIT, THE ISSUING BANK SHALL BE RESPONSIBLE ONLY TO DETERMINE THAT THE
DOCUMENTS AND CERTIFICATES REQUIRED TO BE DELIVERED UNDER THE LETTER OF CREDIT
HAVE BEEN DELIVERED AND THAT THEY COMPLY ON THEIR FACE WITH THE REQUIREMENTS OF
THE LETTER OF CREDIT.
2.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the
account of the Issuing Bank of funds from the Company (i) in reimbursement of
any payment made by the Issuing Bank under the Letter of Credit with respect to
which any Bank has theretofore paid the Agent for the account of the Issuing
Bank for such Bank's participation in the Letter of Credit pursuant to Section
2.03, or (ii) in payment of interest thereon; the Agent will pay to each Bank
such Bank's Commitment Percentage share of such funds (subject to the other
provisions of this Section 2.04(a)), and the Issuing Bank shall receive the
Commitment Percentage share of any Bank that did not so pay the Agent for the
account of the Issuing Bank (including such Bank's Commitment Percentage of any
interest accruing on such L/C Borrowing or other unreimbursed drawing). If any
Bank shall fail to make available to the Agent its Commitment Percentage of an
L/C Borrowing or other unreimbursed drawing by 1:00 p.m. (San Francisco time)
on the Business Day immediately following the date of the relevant drawing,
then such Bank's Commitment Percentage of any interest accruing on such L/C
Borrowing or other unreimbursed drawing from 1:00 p.m. (San Francisco time)
on the Business Day immediately following the date of such drawing to the date
such
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Bank makes available its Commitment Percentage of such L/C Borrowing or other
unreimbursed drawing to the Agent, shall be payable to the Issuing Bank.
Nothing in this Section 2.04(a) shall relieve any Bank of any of its
obligations under Section 2.03.
(b) If the Agent or the Issuing Bank is required at any
time to return to the Company or to a trustee, receiver, liquidator, custodian,
or any official in any Insolvency Proceeding, any portion of the payments made
by the Company to the Agent for the account of the Issuing Bank pursuant to
subsection 2.04 (a) in reimbursement of a payment made under the Letter of
Credit or interest thereon, each Bank shall, on demand of the Agent, forthwith
return to the Agent or the Issuing Bank its Commitment Percentage share of any
amounts so returned by the Agent or the Issuing Bank plus interest thereon from
the date such demand is made to the date such amounts are returned by such Bank
to the Agent or the Issuing Bank, at a rate per annum equal to the Federal
Funds Rate in effect from time to time.
2.05 Role of the Issuing Bank.
(a) Each Bank agrees that, in paying any drawing under
the Letter of Credit, the Issuing Bank shall not have any responsibility to
obtain any document (other than a demand for payment expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any
such document. Neither the Issuing Bank nor any of its Affiliates,
correspondents, participants or assignees, or any of their respective officers,
directors or employees, shall be liable to any Bank for:
(i) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including
the Majority Banks, as applicable);
(ii) any action taken or omitted in the absence of
gross negligence or wilful misconduct; or
(iii) the due execution, effectiveness, validity or
enforceability of any L/C Related Document.
(b) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of the
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Company's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. Neither the Issuing Bank, nor any of its Affiliates,
correspondents, participants or assignees, or any of their
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respective officers, directors or employees, shall be liable or responsible
for any of the matters described in paragraphs (i) through (vii) of Section
2.06; provided, however, anything in such clauses to the contrary
notwithstanding, that the Company may have a claim against the Issuing Bank,
and the Issuing Bank may be liable to the Company, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence or (ii) the Issuing
Bank's willful failure to pay under the Letter of Credit after the presentation
to it by the beneficiary of a demand for payment strictly complying with the
terms and conditions of the Letter of Credit except where the failure to
pay results from the Issuing Bank's attempts to comply with any Requirement of
Law. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
2.06 Obligations Absolute. The obligations of the Company under
this Agreement and any L/C Related Document to reimburse the Issuing Bank, and
to repay L/C Borrowings, shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement and such other L/C
Related Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement, the Letter of Credit or any other L/C Related Document;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of the
Company in respect of the Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the L/C
Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of the Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by the L/C Related Documents
or any unrelated transaction;
(iv) any certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
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(v) any payment by the Issuing Bank under the Letter of
Credit against presentation of a demand for payment, draft or
certificate that does not strictly comply with the terms of the Letter
of Credit; or any payment is made by the Issuing Bank under the Letter
of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of the Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(vi) any release or amendment or waiver of or consent to
departure from any guarantee for all or any of the obligations of the
Company in respect of the Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Company or a guarantor.
2.07 Cash Collateral Pledge. Upon the request of the Agent, if, as
of the Termination Date, the Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, the Company shall immediately pay
over, pledge and deliver, pursuant to a pledge and security agreement in the
form of Exhibit 2.07, cash in an amount equal to the Outstanding Amount, to the
Agent for the benefit of the Banks as collateral for the Company's obligations
under this Agreement and the other L/C Related Documents.
2.08 Letter of Credit Fees. (a) The Company shall pay to the Agent
for the account of the Banks, letter of credit fees equal to 0.40% per annum of
the average daily amount of the Available Amount. Such fees shall accrue from
the Closing Date to the Termination Date, and shall be payable quarterly in
arrears on the last day of each calendar quarter, commencing with the calendar
quarter ending September 30, 1992, and on the Termination Date.
(b) The Company shall pay the Issuing Bank, for the
account of the Issuing Bank, a letter of credit fronting fee in the amount and
at the times set forth in a letter agreement between the Company and the
Issuing Bank.
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2.09 Additional Fees.
(a) Arrangement Fee. The Company shall pay to the Agent
for the Agent's own account an arrangement fee in the amount and at the times
set forth in a letter agreement between the Company and the Agent.
(b) Commitment Fees. The Company shall pay to the Agent
for the account of each Bank a commitment fee in the amount of 0.30 percent
(0.30%) per annum on the average daily amount of the Unavailable Portion. Such
commitment fee shall accrue from Closing Date to the Termination Date and shall
be payable quarterly in arrears on the last day of each calendar quarter,
commencing with the calendar quarter ending September 30, 1992, and on the
Termination Date.
2.10 Computation of Fees and Interest.
(a) All computations of fees and interest under this
Agreement shall be made on the basis of a 360-day year and actual days elapsed,
which results in more interest being paid than if computed on the basis of a
365-day year. Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error. The Agent will, at
the request of the Company or any Bank, deliver to the Company or the Bank, as
the case may be, a statement showing the quotations used by the Agent in
determining any interest rate.
2.11 Payments by the Company.
(a) All payments (including prepayments) to be made by
the Company on account of reimbursements, interest, fees, and other sums due
hereunder shall be made without set-off or counterclaim and shall be made to
the Agent, for the account of the Banks, except as otherwise provided in this
Agreement, at the Agent's Payment Office, in dollars and in immediately
available funds no later than 11:00 a.m. (San Francisco time) on the date of a
drawing under the Letter of Credit, in the case of reimbursement, and otherwise
on such other date when due. In the case of reimbursements, interest, fees and
other amounts which are paid to the Agent for the account or benefit of all of
the Banks the Agent will promptly distribute such payments to each Bank
(subject to the provisions of Section 2.04) its Commitment Percentage of such
reimbursements, interest, fees, or other amounts, in like funds as received.
In the case of fees and other amounts which are paid to the Agent for the
account or
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benefit of the Issuing Bank or the Agent, the Agent will promptly distribute
such payments to the Issuing Bank or the Agent, as appropriate, such fees, or
other amounts, in like funds as received. Any payment which is received by
the Agent later than 11:00 a.m. (San Francisco time) shall be deemed to have
been received on the immediately succeeding Business Day.
(b) 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 interest or fees, as the case may be.
(c) In the event that any reimbursement, L/C Borrowing,
interest (to the extent permitted by law), fee, or any other amount due
hereunder from the Company is not paid on the date when due, such
reimbursement, L/C Borrowing, interest, fee or other amount shall thereafter
bear interest at the rate of the Reference Rate plus 3%.
2.12 Payments by the Banks to the Agent.
(a) Except to the extent otherwise specifically provided
herein, the Agent may assume that each Bank has made available to the Agent on
the date of any L/C Borrowing the amount of such Bank's Commitment Percentage
of such L/C Borrowing, and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Issuing Bank on such date
a corresponding amount. If and to the extent any Bank shall not have made its
full amount available to the Agent and the Agent in such circumstances has made
available to the Issuing Bank such amount, that Bank shall on the next
Business Day following the date of such L/C Borrowing make such amount
available to the Agent, together with interest at the Federal Funds Rate for
each day during such period. A certificate of the Agent submitted to any Bank
with respect to amounts owing under this subsection 2.12(a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Bank's payment to the Issuing Bank
pursuant to Section 2.03(c) on the date of such L/C Borrowing for all purposes
of this Agreement.
(b) The failure of any Bank to make any payments due to
the Issuing Bank with respect to an L/C Borrowing on the date of such L/C
Borrowing shall not relieve such Bank or any other Bank of any obligation
hereunder to pay the sums due from such other Bank with respect to such L/C
Borrowing pursuant to Section 2.03, but no Bank shall be responsible for the
failure of any other Bank to make any such payment to be made by such other
Bank on the date of any L/C Borrowing.
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2.13 Sharing of Payments, Etc. If, other than as expressly
contemplated herein, any Bank shall obtain on account of the Letter of Credit
or this Agreement any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its Commitment
Percentage of payments on account of the Letter of Credit or this Agreement
obtained by all the Banks, such Bank shall forthwith (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the L/C
Borrowings made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and each other
Bank shall repay to the purchasing Bank the purchase price paid thereto
together with an amount equal to such paying Bank's Commitment Percentage
(according to the proportion of (i) the amount of such paying 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 Company agrees that any Bank so
purchasing a participation from another Bank pursuant to this Section 2.13 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation. Each Bank involved in the
purchase of a participation under this Section 2.13 or in a refund under this
Section 2.13 shall notify the Agent of the details of such purchase or refund.
The Agent shall keep records (which shall be conclusive and binding in the
absence of manifest error), of participations purchased pursuant to this
Section 2.13 and shall in each case notify the Banks following any such
purchases.
2.14 Guaranty. All obligations of the Company under this Agreement
and all other L/C Related Documents shall be unconditionally guaranteed by the
Guarantor pursuant to a guaranty and agreement (the "Guaranty") in the form of
Exhibit 2.14 attached hereto.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Subject to subsection 3.01(g), any and all payments
by the Company to each Bank or the Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all
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liabilities with respect thereto, excluding, in the case of each Bank
and the Agent, such taxes (including income taxes or franchise taxes) as are
imposed on or measured by each Bank's or the Agent's net income 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 (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Company shall 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 or any other L/C Related Documents (hereinafter referred to as "Other
Taxes").
(c) Subject to subsection 3.01(g), the Company shall
indemnify and hold harmless 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 3.01) paid by
the Bank or the Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days from the date
the Bank or the Agent makes written demand therefor.
(d) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then, subject to subsection 3.01(g):
(i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
3.01) 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 Company shall make such deductions, and
(iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(e) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Agent.
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(f) Each Bank which is a foreign person (i.e., a person
other than a United States person for United States Federal income tax
purposes) agrees that:
(i) it shall, no later than the Closing Date (or,
in the case of a Bank which becomes a party hereto pursuant to Section
10.08 after the Closing Date, the date upon which the Bank becomes a
party hereto) deliver to the Agent (and the Agent shall deliver a copy
thereof to the Company) two accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor thereto ("Form
4224"), or two accurate and complete signed originals of Internal
Revenue Service Form 1001 or any successor thereto ("Form 1001"), as
appropriate, in each case indicating that the Bank is on the date of
delivery thereof entitled to receive payments of principal, interest
and fees under this Agreement free from withholding of United States
Federal income tax;
(ii) if at any time such Bank makes any changes
necessitating a new Form 4224 or Form 1001, it shall with reasonable
promptness deliver to the Agent (and the Agent shall deliver a copy
thereof to the Company) in replacement for, or in addition to, the
forms previously delivered by it hereunder, two accurate and complete
signed originals of Form 4224, or two accurate and complete signed
originals of Form 1001, as appropriate, in each case indicating that
such Bank is on the date of delivery thereof entitled to receive
payments of reimbursements, interest, fees, and other sums under this
Agreement free from withholding of United States Federal income tax;
(iii) it shall (to the extent it may lawfully do
so), before or promptly after the occurrence of any event (including
the passing of time but excluding any event mentioned in (ii) above)
requiring a change or renewal in the most recent Form 4224 or Form
1001 previously delivered by such Bank, deliver to the Agent (and the
Agent shall deliver a copy thereof to the Company) two accurate and
complete original signed copies of Form 4224 or Form 1001 in
replacement for the forms previously delivered by such Bank; and
(iv) it shall, promptly upon the Agent's or the
Company's reasonable request to that effect, deliver to the Agent (and
the Agent shall deliver a copy thereof to the Company) such other
forms or similar documentation as may be required from time to time by
any applicable law, treaty, rule or regulation in order to establish
such Bank's tax status for withholding purposes.
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(g) The company will not be required to pay any
additional amounts in respect of United States Federal income tax pursuant to
subsection 3.01(d)(i) to any Bank for the account of any Lending Office of such
Bank:
(i) if the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank to comply
with its obligations under subsection 3.01(f) in respect of such
Lending Office;
(ii) if such Bank shall have delivered to the
Agent for delivery to the Company a Form 4224 in respect of such
Lending office pursuant to subsection 3.01(f), and such Bank shall not
at any time be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of payments by the Company
hereunder for the account of such Lending Office for any reason other
than a change in United States law or regulations or in the official
interpretation of such law or regulations by any governmental
authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of delivery of
such Form 4224; or
(iii) if the Bank shall have delivered to the Agent
for delivery to the Company a Form 1001 in respect of such Lending
Office pursuant to Section 3.01(f), and such Bank shall not at any
time be entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by the Company
hereunder for the account of such Lending office for any reason other
than a change in United States law or regulations or any applicable
tax treaty or regulations or in the official interpretation of any
such law, treaty or regulations by any governmental authority charged
with the interpretation or administration thereof (whether or not
having the force of law) after the date of delivery of such Form 1001.
(h) If, at any time, the Agent or the Company requests
any Bank to deliver any forms or other documentation pursuant to subsection
3.01(f)(iv), then the Company shall, on demand of such Bank through the
Agent, reimburse such Bank for any costs and expenses (including expenses of
outside legal counsel and the allocated costs of in-house counsel) reasonably
incurred by such Bank in the preparation or delivery of such forms or other
documentation.
(i) If the Company is required to pay additional amounts
to any Bank or the Agent pursuant to subsection 3.01(d), then such Bank shall
use its reasonable best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue if
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such change in the judgment of such Bank is not otherwise disadvantageous to
such Bank.
(j) If the Internal Revenue Service or any other Federal,
state, municipal or other authority within the United States (including any
agency or subdivision thereof) asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of a Bank (because the
appropriate tax form was not delivered, was not properly executed, because the
Bank was not entitled to exemption or reduction of withholding tax, or for any
other reason), then that Bank shall indemnify the Agent (to the extent the
Agent has not been reimbursed therefor by the Company) for all amounts paid
directly or indirectly by the Agent as tax or otherwise, including penalties
and interest (and any taxes imposed by any jurisdiction on the amounts payable
to the Agent hereunder), together with all costs, expenses, and attorneys' fees
(including the allocated costs for in-house legal services).
3.02 Increased Costs and Reduction of Return.
(a) If any Bank shall determine that, due to either (i)
the introduction of or any change in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request 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 such Bank of agreeing to
issue, amend, maintain, fund, or participate in the Letter of Credit, any L/C
Borrowings, or other unreimbursed drawings, then the Company shall be liable
for, and shall from time to time, upon demand therefor by such Bank (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank shall have determined that (i) the
introduction after the date hereof of any Capital Adequacy Regulation, (ii) any
change in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Bank (or its Lending Office)
or any corporation controlling such Bank, with any request, guideline or
directive regarding capital adequacy (whether or not having the force of law)
of any such central bank or other authority; affects or would affect the amount
of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its obligation under this Agreement, then
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such Bank shall promptly notify the Company of such determination and, upon
demand of such Bank (and such Bank shall deliver a copy of such demand to the
Agent), the Company shall immediately pay to such Bank, from time to time as
specified by such Bank, additional amounts sufficient to compensate the Bank
for such increase.
(c) If any Governmental Authority shall require that any
Bank treat the Letter of Credit as a financial letter of credit rather than as
a performance letter of credit, and if there shall be any increase in the cost
to such Bank of agreeing to issue, amend, maintain, fund, or participate in the
Letter of Credit, any unreimbursed drawings, or any L/C Borrowings, then the
Company shall be liable for, and shall from time to time, upon demand therefor
by such Bank (with a copy of such demand to the Agent), pay to the Agent for
the account of such Bank, additional amounts, as determined by such Bank, as
are sufficient to compensate such Bank for such increased costs.
3.03 Certificates of Banks. Any Bank claiming reimbursement or
compensation pursuant to this Article III shall deliver to the Company (with a
copy to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Bank hereunder and such certificate shall be conclusive and
binding on the Company in the absence of manifest error.
3.04 Survival. The agreements and obligations of the Company
contained in this Article III and of the Banks contained in Section 3.01(j)
shall survive the payment in full of all other obligations of the Company under
this Agreement.
3.05 Replacement of Banks. If any Bank (a "Notice Bank) makes
demand for amounts owed under Section 3.02, then the Company, with the consent
of the Agent, shall have the right, if no Default or Event of Default exists,
and subject to the terms and conditions set forth in Section 10.08, to
designate any Eligible Assignee (a "Replacement Bank") to purchase the Notice
Bank's participation in the Letter of Credit, the drawings thereunder and L/C
Borrowings, interest thereon, and fees and to assume the Notice Bank's
obligations to the Company under this Agreement. Such purchase shall be at a
price equal to the Notice Bank's Commitment Percentage of such drawings and L/C
Borrowings, interest thereon, and fees, all as of the time of such purchase.
Subject to the foregoing, the Notice Bank agrees to assign without recourse to
the Replacement Bank its participation in the Letter of Credit, the drawings
thereunder, L/C Borrowings, and its Commitment, and to delegate to the
Replacement Bank its obligations to the Company under this Agreement and its
future obligations to the Agent under this Agreement. Upon such sale and
delegation by the Notice Bank and the purchase and assumption by the
Replacement Bank, and compliance with the provisions of Section 10.08, the
Notice Bank
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shall cease to be a Bank hereunder and the Replacement Bank shall become a
Bank under this Agreement, providing, however, that to the extent (and
solely to the extent) relating to L/C Borrowings extended, acts or omissions
made, or other matters arising prior to the date of such Notice Bank's sale and
delegation, the Notice Bank shall at all times remain a "Bank" hereunder.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions to the Effectiveness of this Agreement. The
effectiveness of this Agreement is subject to the condition that the Agent
shall have received on or before the Closing Date all of the following, in form
and substance satisfactory to the Agent, its counsel, and each Bank, and in
sufficient copies for each Bank:
(a) Reimbursement Agreement. This Agreement executed by
the Company and each of the Banks;
(b) Guaranty. The Guaranty executed by the Guarantor;
(c) Resolutions; Incumbency.
(i) Copies of the resolutions of the boards of
directors of the Company and the Guarantor approving and authorizing
the execution, delivery and performance by such Person of this
Agreement, the Guaranty, and the other L/C Related Documents to be
delivered hereunder by such Person and authorizing the incurring of
indebtedness in connection with the Letter of Credit, certified as of
the Closing Date by the Secretary or an Assistant Secretary of the
Company and of the Guarantor; and
(ii) A certificate of the Secretary or Assistant
Secretary of each of the Company, the Guarantor, and each Subsidiary
of the Company certifying the names and true signatures of the
officers of the such Person authorized to execute and deliver, as
applicable, this Agreement, and all other L/C Related Documents to be
delivered hereunder to be executed by such Person;
(d) Articles of Incorporation; By-laws and Good Standing.
Each of the following documents:
(i) the articles or certificate of incorporation
of each of the Company and the Guarantor as in effect on the Closing
Date, certified by the Secretary of State of the
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State of incorporation of the Company or the Guarantor, as
appropriate, as of a recent date and by the Secretary or Assistant
Secretary of each of the Company and the Guarantor as of the Closing
Date and the bylaws of the Company and the Guarantor as in effect on
the Closing Date, certified by the Secretary or Assistant Secretary
of the Company or the Guarantor, as appropriate, as of the Closing
Date; and
(ii) a good standing certificate as of a recent
date for Company from the Secretary of State of the State of Ohio and
good standing certificates as of a recent date from the States of
California, Delaware, Idaho, Illinois, and New York evidencing the
qualification of the Company to do business as a foreign corporation
in such States, together with bring-down certificates of all such
certificates by telex or telecopy, dated the Closing Date, and a good
standing certificate as of a recent date for the Guarantor from the
Secretary of State of the State of Delaware and good standing
certificate as of a recent date from the State of Idaho evidencing the
qualification of the Guarantor to do business as a foreign corporation
in State of Idaho, together with bring-down certificates of all such
certificates by telex or telecopy, dated the Closing Date, and
certified copies of certificates dated not greater than one year prior
to the Closing Date evidencing the qualification and the Company or
the Guarantor, as appropriate, to do business as a foreign corporation
in each other state where the Company or the Guarantor is qualified to
do business as a foreign corporation;
(e) Legal Opinions. An opinion of internal counsel to
the Company and the Guarantor addressed to the Agent and the Banks,
substantially in the form of Exhibit 4.01(e)(1), an opinion of Jones, Day,
Reavis & Pogue, special California counsel to the Company and the Guarantor,
addressed to the Agent and the Banks, substantially in the form of Exhibit
4.01(e)(2), and an opinion of Jenner & Block, Illinois counsel to the Company
and the Guarantor, addressed to the Agent and the Banks, substantially in the
form of Exhibit 4.01(e)(3);
(f) Payment of Fees. The Company shall have paid all
costs, accrued and unpaid fees and expenses (including, without limitation,
legal fees and expenses) to the extent then due and payable on the Closing
Date, including any arising under Sections 2.08, 2.09, 3.01, and 10.04;
(g) Certificate. A certificate signed by a Responsible
Officer of the Company, dated as of the Closing Date, stating that:
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(i) the representations and warranties contained
in Article V are true and correct on and as of such date, as though
made on and as of such date;
(ii) no Default or Event of Default exists or
would result from the transactions contemplated by this Agreement; and
(iii) there has occurred since March 31, 1992, no
Material Adverse Effect;
(h) Financial Statements. A certified copy of financial
statements of the Guarantor and its Subsidiaries referred to in Section 5.11;
(i) Compliance Certificate. A Compliance Certificate
signed by a Responsible Officer of the Company, dated August 4, 1992, which
indicates that the Company is in compliance with the covenants referenced
therein; and
(j) Other Documents. Such other approvals, opinions or
documents as any Bank may reasonably request.
4.02 Conditions to Letter of Credit Amendments. The obligation of
the Issuing Bank to make any amendment to the Letter of Credit is subject to
the satisfaction of the following conditions precedent on the relevant
amendment date:
(a) Request for Amendment. The Agent shall have received
with a counterpart for each Bank, an Amendment Application;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Company contained in Article V shall
be true and correct on and as of such amendment date with the same effect as if
made on and as of such amendment date; and
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such amendment.
Each Amendment Application by the Company hereunder shall constitute a
representation and warranty by the Company hereunder as of the date of each
such Amendment Application that the conditions in Section 4.02 have been
satisfied.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company, the Guarantor and
each of their respective Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on
its business and to execute, deliver and perform its obligations under the L/C
Related Documents;
(c) is duly qualified as a foreign corporation, licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in Section 5.01(c) or Section 5.01(d), to the
extent that the failure to do so could not have a Material Adverse Effect, and
except to the extent that all of the following are true: (i) each Subsidiary
for which the representation and warranty in either Section 5.01(a) or (b)
above are not true is a Subsidiary of the Guarantor other than the Company, has
net worth less than $500,000, and had annual revenue for its most recent fiscal
year less than $1,000,000, (ii) the Subsidiaries for which the representation
and warranty in either Section 5.01(a) or (b) above are not true have net worth
less than $5,000,000 in the aggregate, and had revenue, in their most recent
fiscal year, less than $10,000,000 in the aggregate, and (iii) the failure of
the representation and warranty in Section 5.01(a) or (b) above to be true does
not have a Material Adverse Effect.
5.02 Corporate Authorization: No Contravention. The execution,
delivery and performance by the Company, the Guarantor and their respective
Subsidiaries of this Agreement and any other L/C Related Document to which such
Person is party, have been duly authorized by all necessary corporate action
and do not and will not:
(a) contravene the terms of that Person's certificate
of incorporation, bylaws or other organization document;
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(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any indenture, agreement,
lease, instrument, Contractual Obligation, injunction, order, decree or
undertaking to which such Person is a party; or
(c) violate any Requirement of Law.
5.03 Governmental Authorization. Except for those that have been
obtained as of the date hereof, no approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with the execution, delivery, performance
or enforcement against the Company, the Guarantor or any of their respective
Subsidiaries of the Agreement or any other L/C Related Document or any other
instrument or agreement required hereunder to be made by the Company, the
Guarantor, or any of their respective Subsidiaries.
5.04 Binding Effect. This Agreement and each other L/C Related
Document to which the Company, the Guarantor or any of their respective
Subsidiaries is a party constitute the legal, valid and binding obligations of
the Company, the Guarantor, and such Subsidiaries to the extent any such Person
is a party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.05 Litigation. (a) Except as set forth in Schedule 5.05 hereto,
there are no actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated at law, in equity, in
arbitration or before any Governmental Authority, against the Company, the
Guarantor, or their respective Subsidiaries or any of their respective
properties which:
(i) purport to affect or pertain to the Contract,
this Agreement, or any L/C Related Document, or any of the
transactions contemplated hereby or thereby; or
(ii) if determined adversely to the Company, the
Guarantor or their respective Subsidiaries, could reasonably be
expected to have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued
by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery and performance of the Contract, this
Agreement or any other L/C Related Document, or directing that the
transactions provided for herein or therein not be consummated as
herein or therein provided.
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(b) The proceedings brought by Local No. 719, United Auto
Workers and Carole J. Travis and Bombardier Corporation and Pullman Technology,
Inc. against Metra and Morrison Knudsen Corporation, which proceedings began in
the Circuit Court of Cook County, Illinois and had case numbers 92-CH-01041 and
92CH-01042, and all related lawsuits, actions, litigation, and other
proceedings, whether at law or in equity, have been dismissed with prejudice.
5.06 Default. No Default or Event of Default exists or would
result from the incurring of obligations by the Company under this Agreement or
any other L/C Related Document. Neither the Company, the Guarantor nor any of
their respective Subsidiaries, is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could have a reasonable likelihood of having a Material Adverse
Effect.
5.07 ERISA Compliance.
(a) Except for Multiemployer Plans not maintained or
sponsored by the Company or the Guarantor and to which the Company or the
Guarantor first contributed or was first obligated to contribute between
January 1, 1990, and the Closing Date, Schedule 5.07 lists all Plans maintained
or sponsored by the Company or the Guarantor or to which either is obligated to
contribute, and separately identifies Plans intended to be Qualified Plans and
Multiemployer Plans. All written descriptions thereof provided to the Agent are
true and complete in all material respects. The Withdrawal Liabilities
(including such liabilities with respect to Multiemployer Plans not listed on
Schedule 5.07) do not exceed $10,000,000.
(b) Except for Multi-employer Plans not maintained or
sponsored by the Company or the Guarantor but to which the Company or the
Guarantor contributes or is obligated to contribute, each Plan is in compliance
in all material respects with the applicable provisions of ERISA, the Code and
other Federal or state law, including all requirements under the Code or ERISA
for filing reports (which are true and correct in all material respects as of
the date filed), except to the extent that non-compliance for all Plans in the
aggregate would not have a Material Adverse Effect, and benefits have been paid
in accordance with the provisions of the Plan.
(c) Except for Multi-employer Plans not maintained or
sponsored by the Company or the Guarantor but to which the Company or the
Guarantor contributes or is obligated to contribute, each Qualified Plan has
been determined by the IRS to qualify under Section 401 of the Code, and the
trusts created thereunder have been determined to be exempt from tax under the
provisions of Section 501 of the Code, and to the best knowledge
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of the Company nothing has occurred which would cause the loss of such
qualification or tax-exempt status.
(d) Except as set forth in Schedule 5,07, neither the
Company, the Guarantor, nor any ERISA Affiliate of the Guarantor has any
outstanding liability under Title IV of ERISA with respect to any Plan
maintained or sponsored by the Company or the Guarantor or any ERISA Affiliate
(as to which the Company or the Guarantor is or may be liable), nor with
respect to any Plan to which the Company or any ERISA Affiliate (wherein the
Company or the Guarantor is or may be liable) contributes or is obligated to
contribute.
(e) Except as set forth on Schedule 5.07, none of the
Qualified Plans subject to Title IV of ERISA has any Unfunded Pension Liability
as to which the Company or the Guarantor is or may be liable.
(f) Except as set forth in Schedule 5,07, no Plan
maintained or sponsored by the Company or the Guarantor provides medical or
other welfare benefits or extends coverage relating to such benefits beyond the
date of a participant's termination of employment with the Company or the
Guarantor, except to the extent required by Section 4980B of the Code and at
the sole expense of the participant or the beneficiary of the participant to
the fullest extent permissible under such Section of the Code. The Company and
Guarantor have complied in all material respects with the notice and
continuation coverage requirements of Section 4980B of the Code.
(g) Except for Multiemployer Plans not maintained by the
Company or the Guarantor but to which the Company or the Guarantor contributes
or is obligated to contribute, and except as set forth in Schedule 5.07, no
ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan maintained or sponsored by the Company or the Guarantor or to which the
Company or the Guarantor is obligated to contribute.
(h) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, other than routine claims for
benefits in the usual and ordinary course, asserted or instituted against (i)
any Plan maintained or sponsored by the Company or the Guarantor or their
respective assets, (ii) any member of the Controlled Group with respect to any
Qualified Plan of the Company or the Guarantor, or (iii) any fiduciary with
respect to any Plan for which the Company or the Guarantor may be directly or
indirectly liable, through indemnification obligations or otherwise.
(i) Except as set forth in Schedule 5.07, neither the
Company nor the Guarantor has incurred nor reasonably expects to incur (i) any
liability (and no event has occurred which, with
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the giving of notice under Section 4219 Of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan or (ii) any liability under Title IV of ERISA (other than premiums due and
not delinquent under Section 4007 of ERISA) with respect to a Plan.
(j) Except as set forth in Schedule 5.07, neither the
Company nor the Guarantor has transferred any Unfunded Pension Liability
outside of the Controlled Group or otherwise engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
(k) Neither the Company nor the Guarantor has engaged,
directly or indirectly, in a non-exempt prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with any Plan
which has a reasonable likelihood of having a Material Adverse Effect.
5.08 Use of Letter of Credit. The Letter of Credit is being used
solely for the purposes set forth in Section 6.11.
5.09 Title to Properties. Each of the Company, the Guarantor, and
each of their respective Subsidiaries has good record and marketable title in
fee simple to or valid leasehold interests in all its property, except for such
defects in title as could not, individually or in the aggregate, have a
Material Adverse Effect. The property of the Company, the Guarantor, and each
of their respective Subsidiaries is free and clear of all Liens or rights of
others, except Permitted Liens. Except as listed on Schedule 5.09, neither the
Company, the Guarantor, nor any Subsidiary of the Guarantor has any Lien on any
of its property or assets in excess of $5,000,000.
5.10 Taxes. The Company, the Guarantor, and each of their
respective Subsidiaries have filed all Federal and other material tax returns
and reports required to be filed and have paid all Federal and other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable except
those which are being contested in good faith by appropriate proceedings and
for which adequate reserves have been provided in accordance with GAAP and no
Notice of Lien has been filed or recorded. There is no proposed tax assessment
against the Company, the Guarantor, or any of their respective Subsidiaries
which would, if the assessment were made, have a Material Adverse Effect.
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5.11 Financial Condition.
(a) The audited consolidated financial statements of
financial condition of the Guarantor and its Subsidiaries dated December 31,
1991, and the related consolidated statements of operations, stockholders'
equity and cash flows for the fiscal year ended on that date, and the unaudited
consolidated financial statements of financial condition of the Guarantor and
its Subsidiaries dated March 31, 1992, and the related consolidated statements
of operations, stockholders equity and cash flows for the fiscal year ended on
that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein;
(ii) are complete, accurate and fairly present the
financial condition of the Company and its Subsidiaries or the
Guarantor and its Subsidiaries, as appropriate, as of the date thereof
and results of operations for the period covered thereby; and
(iii) show all material indebtedness and other
liabilities, direct or contingent of the Company and its consolidated
Subsidiaries and the Guarantor and its Subsidiaries, as appropriate,
as of the date thereof (including liabilities for taxes and material
commitments).
(b) Since March 31, 1992, there has been no Material
Adverse Effect.
5.12 Environmental Matters.
(a) Except as specifically identified in Schedule 5.12,
the operations of the Company, the Guarantor, and each of their respective
Subsidiaries comply in all respects with all Environmental Laws except such
non-compliance which would not result in liability in excess of $10,000,000 in
the aggregate.
(b) Except as specifically identified in Schedule 5.12,
each of the Company, the Guarantor, and each of their respective Subsidiaries
has obtained all licenses, permits, authorizations and registrations required
under any Environmental Law ("Environmental Permits") necessary for its
operations, and all such Environmental Permits are in good standing, and each
of the Company, the Guarantor, and each of their respective Subsidiaries is in
compliance with all terms and conditions of such Environmental Permits.
(c) Except as specifically identified in Schedule 5.12,
none of the Company, the Guarantor, any of their
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respective Subsidiaries or any of the present property or operations of any of
them is subject to any outstanding written order from or agreement with any
Governmental Authority or other Person, nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental
Claim or Hazardous Material.
(d) Except as specifically identified in Schedule 5.12,
there are no conditions or circumstances which may give rise to any
Environmental Claim arising from the operations of the Company, the Guarantor,
or any of their respective Subsidiaries, including Environmental Claims
associated with any operations of the Company, the Guarantor, or any of their
respective Subsidiaries with a potential liability in excess of $10,000,000 in
the aggregate. Without limiting the generality of the foregoing, (i) neither
the Company, the Guarantor, nor any of their respective subsidiaries has any
underground storage tanks (x) that are not properly registered or permitted
under applicable Environmental Laws or (y) that are leaking or disposing of
Hazardous Materials off-site and (ii) the Company, the Guarantor, and their
respective Subsidiaries have notified all of their employees of the existence,
if any, of any health hazard arising from the conditions of their employment
and have met all notification requirements under Title III of CERCIA or any
other Environmental Law.
5.13 Regulated Entities. None of the Company, the Guarantor, any
Person controlling the Company or the Guarantor, or any Subsidiaries of the
Company or the Guarantor, is (a) an "Investment Company" within the meaning of
the Investment Company Act of 1940; or (b) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company, the
Guarantor, nor any of their respective Subsidiaries is a party to or bound by
any Contractual obligation or subject to any charter or corporate restriction
or any Requirement of Law which could reasonably be expected to have a Material
Adverse Effect or insofar as the Company may reasonably foresee has a material
likelihood so to affect, the business, operations, properties, assets, or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole or the Guarantor and its Subsidiaries taken as a whole or the rights of
the Banks under any L/C Related Document, or may impair the ability of any of
the Company, the Guarantor, or any of their respective Subsidiaries to perform
or observe its obligations under this Agreement.
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5.15 Solvency. Each of the Company, the Guarantor, and their
respective Subsidiaries is Solvent.
5.16 Labor Relations. There are no strikes, lockouts or other
labor disputes against the Company, the Guarantor, or any of their respective
Subsidiaries, or, to the best of the Company's knowledge, threatened against or
affecting the Company, the Guarantor, or any of their respective Subsidiaries,
which would have a Material Adverse Effect on the Guarantor and its
Subsidiaries, and no significant unfair labor practice complaint is pending
against the Company, the Guarantor, or any of their respective Subsidiaries or,
to the best knowledge of the Company, threatened against any of them before any
Governmental Authority, which would have a Material Adverse Effect on the
Guarantor and its Subsidiaries.
5.17 Copyrights, Patents, Trademarks and Licenses, Patents, etc.
Each of the Company, the Guarantor, and their respective subsidiaries owns or
is licensed or otherwise has the right to use all of the patents, trademarks,
service marks, trade names, copyrights, franchises, authorizations and other
rights that are reasonably necessary for the operation of its businesses,
without conflict with the rights of any other Person. To the best knowledge of
the Company, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed by the Company, the Guarantor, or any of their respective Subsidiaries
infringes upon any rights owned by any other Person; except as set forth on
Schedule 5.17, no claim or litigation regarding any of the foregoing is pending
or threatened, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or, to the
knowledge of the Company, proposed, which, in either case, would be likely to
result in a Material Adverse Effect.
5.18 Subsidiaries. The Company has no subsidiaries other than
those listed on Schedule 5.18(a) hereto and has no equity investments in any
other corporation or entity other than those listed on Schedule 5.18(b) hereto.
The Guarantor has no Subsidiaries other than those listed on Schedule 5.18(c)
hereto and has no equity investments in any other corporation or entity other
than those listed on Schedule 5.18(d) hereto.
5.19 Broker's or Transaction Fees. Neither the Company, the
Guarantor, nor any of their respective subsidiaries has any obligation to any
Person in respect of any finder's, broker's or investment banker's fee in
connection with the transactions contemplated hereby.
5.20 Insurance. The properties of the Company, the Guarantor, and
their respective Subsidiaries are insured with financially sound and reputable
insurance companies, in such
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amounts, with such deductibles and covering such risks as is customarily
carried on by companies engaged in similar businesses and owning similar
properties in localities where the Company, the Guarantor, or such Subsidiary
operates.
5.21 The Contract. (a) The Contract has been executed and
delivered by the Company, and the execution, delivery and performance by the
Company, the Guarantor and their respective Subsidiaries of the Contract and
any related documents and agreements to which such Person is party, have been
duly authorized by all necessary corporate action and do not and will not:
(i) contravene the terms of that Person's
certificate of incorporation, bylaws or other organization document;
(ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any indenture,
agreement, lease, instrument, Contractual obligation, injunction,
order, decree or undertaking to which such Person is a party; or
(iii) violate any Requirement of Law.
(b) Except as has been made or obtained prior to the date
hereof, no approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery, performance or enforcement against
the Company, the Guarantor or any of their respective Subsidiaries of the
Contract or any other documents and agreements related thereto.
(c) The Contract and the other documents and agreements
related thereto which the Company, the Guarantor or any of their respective
Subsidiaries is a party are in full force and effect and constitute the legal,
valid and binding obligations of the Company, the Guarantor, and such
Subsidiaries to the extent any such Person is a party thereto, enforceable
against such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
5.22 Full Disclosure. None of the representations or warranties
made by the Company, the Guarantor, or any of their respective Subsidiaries in
the L/C Related Documents as of the date of such representations and
warranties, and none of the statements contained in each exhibit, report,
statement or certificate furnished by or on behalf of the Company, the
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Guarantor, or any of their respective Subsidiaries in connection with the L/C
Related Documents, contains any untrue statement of a material fact or omits
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank shall have
any Commitment hereunder, or the Letter of Credit is outstanding or other
amount due hereunder shall remain unpaid, unless the Majority Banks waive
compliance in writing:
6.01 Financial Statements. The Company shall deliver or cause to
be delivered to the Agent in form and detail satisfactory to the Banks, with
copies for each Bank:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year of the Guarantor, a copy of the audited
consolidated balance sheet of the Guarantor and its consolidated Subsidiaries
as at the end of such year and the related consolidated statements of income,
stockholders' equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous year, and accompanied by
the opinion of an independent certified public accountant who shall be
satisfactory to the Bank, together with a report which shall state that such
consolidated financial statements present fairly the financial position of the
Guarantor and its Subsidiaries for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years;
(b) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters of each year a copy of
the unaudited consolidated balance sheet of the Guarantor and its consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, stockholders' equity and cash flow for the period
commencing on the first day and ending on the last day of such quarter, and
certified by an appropriate Responsible Officer of and Company and of the
Guarantor as being complete and correct and fairly presenting, in accordance
with GAAP, the financial position and the results of operations of the
Guarantor and its Subsidiaries;
(c) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters of each year and 90
days after the end of each fiscal year the unaudited consolidating balance
sheets of the Guarantor and each of its
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Subsidiaries (including, without limitation, the Company), and the related
consolidating statements of income, stockholders' equity and cash flow for such
quarter or year, all certified by an appropriate Responsible Officer of the
Guarantor as having been used in connection with the preparation of the
financial statements referred to in paragraphs (a) and (b) of this Section
6.01;
(d) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters and 90 days after the
end of each fiscal year, a Compliance Certificate of the Guarantor for such
quarter or year end, certified by an appropriate Responsible Officer as being
complete and correct.
6.02 Certificates; Other Information. The Company shall furnish to
the Agent with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 6.01(a) above, a certificate of the
independent certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) promptly after the same are sent, copies of all
financial statements and reports which the Guarantor or the Company sends to
its stockholders, and promptly after the same are filed, copies of all
financial statements and regular, periodical or special reports which the
Guarantor or the Company may make to, or file with, the Securities and Exchange
Commission or any successor or similar Governmental Authority; and
(c) promptly, such additional financial and other
information as the Agent, at the request of any Bank may from time to time
reasonably request.
6.03 Notices. The Company shall promptly notify the Agent and each
Bank:
(a) of the occurrence of any Default or Event of Default
and of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(b) of any (1) breach or non-performance of, or any
default under any Contractual Obligation of the Guarantor or the Company or any
of their respective Subsidiaries which could result in a Material Adverse
Effect; or (ii) dispute, litigation, investigation, proceeding or suspension
which may exist at any time between the Company or any of its Subsidiaries
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and any Governmental Authority which could result in a Material Adverse Effect;
(c) of the commencement of, or any material development
in, any litigation or proceeding affecting the Guarantor or any or its
subsidiaries (i) in which the amount of damages claimed is $20,000,000 (or its
equivalent in another currency or currencies) or more, (ii) in which injunctive
or similar relief is sought and which, if adversely determined, could have a
Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any L/C Related Document
or the operations of the Guarantor or any of its Subsidiaries;
(d) upon, but in no event later than ten days after,
becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Guarantor or any Subsidiary or any of their properties pursuant to any
applicable Environmental Laws, (ii) all other Environmental Claims, and (iii)
any environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Guarantor or any Subsidiary that could
reasonably be anticipated to cause such property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of such property under any Environmental Laws, if the aggregate cost or value
of such actions, Environmental Claims, or other conditions is reasonably
anticipated to be in excess of $10,000,000 in the aggregate;
(e) of any other litigation or proceeding affecting the
Guarantor or any of its Subsidiaries which the Guarantor would be required to
report to the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, within four days after reporting the same to the
Securities and Exchange Commission;
(f) any ERISA Event affecting the Guarantor or any member
of its Controlled Group (but in no event more than ten days after such ERISA
Event) together with (i) a copy of any notice with respect to such ERISA Event
that may be required to be filed with the PBGC and (ii) any notice delivered by
the PBGC to the Guarantor or any member or its Controlled Group with respect to
such ERISA Event;
(g) upon becoming aware of any Material Adverse Effect
subsequent to the date of the most recent audited financial statements of the
Guarantor delivered to the Banks pursuant to subsection 6.01(a), notice
thereof;
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(h) following any change in accounting policies or
financial reporting practices of the Guarantor or the Company, notice thereof;
and
(i) upon becoming aware thereof, notice of any labor
controversy resulting in or threatening to result in any strike, work stoppage,
boycott, shutdown or other labor disruption against or involving the Guarantor
or any Subsidiary, if such labor controversy is reasonably likely to have a
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of the Company or the Guarantor, as
appropriate, setting forth details of the occurrence referred to therein and
stating what action the Company or the Guarantor, as appropriate, proposes to
take with respect thereto.
6.04 Preservation of Corporate Existence, Etc. Subject to the
provisions of Section 7.02, the Company shall and shall cause the Guarantor and
each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its State or
jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business;
(c) use its reasonable efforts, in the ordinary course
and consistent with past practice, to preserve its business organization and
preserve the goodwill and business of the customers, suppliers and others
having business relations with it; and
(d) preserve or renew all of its registered trademarks,
trade names and service marks, the non-preservation of which could have a
Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and
shall cause the Guarantor and each of its Subsidiaries to maintain, and
preserve all its property which is used or useful in its business in good
working order and condition, ordinary wear and tear excepted and make all
necessary repairs thereto and renewals and replacements thereof except where
the failure to do so would not have a Material Adverse Effect, except as
permitted by Section 7.02. The Company shall use, and shall cause each of the
Guarantor and its Subsidiaries to use, the standard of care typical in the
industry in the operation of its facilities.
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6.06 Insurance. The Company shall maintain, and shall cause the
Guarantor and each of its Subsidiaries to maintain, with financially sound and
reputable insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons,
including workers' compensation insurance, public liability and property and
casualty insurance which amount shall not be reduced by the Company, the
Guarantor, or any Subsidiary in the absence of thirty days' prior notice to the
Agent. Upon request of the Agent, the Company shall furnish or cause to be
furnished to the Agent, with copies for each Bank, at reasonable intervals (but
not more than once per calendar year) a certificate of a Responsible Officer of
the Company or the Guarantor (and, if requested by the Agent, any insurance
broker of the Company or the Guarantor) setting forth the nature and extent of
all insurance maintained by the Company and the Guarantor and its Subsidiaries
in accordance with this Section 6.06 (and which, in the case of a certificate
of a broker, were placed through such broker).
6.07 Payment of Obligations. The Company shall, and shall cause
the Guarantor and each of its Subsidiaries to, pay and discharge as the same
shall become due and payable, all their respective obligations and liabilities,
including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and adequate reserves
in accordance with GAAP are being maintained by the Company, the Guarantor, or
such Subsidiary;
(b) all lawful claims which, if unpaid, might by law
become a Lien upon its property; and
(c) all Indebtedness as and when due and payable but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
6.08 Compliance with Laws. The Company shall comply, and shall
cause the Guarantor and each of its Subsidiaries to comply, in all material
respects with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor
Standards Act), except such as may be contested in good faith or as to which a
bona fide dispute may exist.
6.09 inspection of Property and Books and Records. The Company
shall maintain and shall cause the Guarantor and each of its Subsidiaries to
maintain, proper books of record and
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account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company, the Guarantor, and such
Subsidiaries. The Company will permit, and will cause the Guarantor and
each of its Subsidiaries to permit, representatives of the Agent or any Bank to
visit and inspect any of their respective properties, to examine their
respective corporate, financial and operating records and make copies thereof
or abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, employees and independent
public accountants, all at the expense of the Company and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however, when an Event
of Default exists the Agent or any Bank may visit and inspect at the expense of
the Company such properties at any time during business hours and without
advance notice.
6.10 Environmental Laws.
(a) The Company shall, and shall cause the Guarantor and
each of its Subsidiaries to, conduct its operations and keep and maintain its
property in compliance with all Environmental Laws.
(b) Upon written request of the Agent or any Bank, the
Company shall submit and cause the Guarantor and each of its Subsidiaries to
submit, to the Agent and such Bank, at the Company's sole cost and expense at
reasonable intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice or report required pursuant to Section 6.03 and any
other environmental, health or safety compliance obligation, remedial
obligation or liability, that could, individually or in the aggregate, result
in liability in excess of $10,000,000.
6.11 Use of the Letter of Credit. The Company shall use the Letter
of Credit solely to support the Company's obligations under the
Proposal/Contract (Rev. 1/24/92), between Metra and the Company, and all
exhibits and supplements thereto, awarded March 9, 1992 (the "Contract").
6.12 Solvency. The Company shall continue to be, and cause the
Guarantor and each of its Subsidiaries to be, Solvent.
6.13 Further Assurances. The Company shall ensure that all written
information, exhibits and reports furnished to the Banks do not and will not
contain any untrue statement of a material fact and do not and will not omit to
state any material fact or any fact necessary to make the statements contained
therein not
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misleading in light of the circumstances in which made, and will promptly
disclose to the Banks and correct any defect or error that may be discovered
therein or in any L/C Related Document or in the execution, acknowledgement or
recordation thereof.
ARTICLE VII
NEGATIVE COVENANTS
The Company hereby covenants and Agrees that, so long as any Bank
shall have any Commitment hereunder, or the Letter of Credit is outstanding or
any amount payable hereunder shall remain unpaid, unless the Majority Banks
waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, nor shall it
permit the Guarantor or any of its Subsidiaries, directly or indirectly, to
make, create, incur, assume or suffer to exist any Lien upon or with respect to
any part of its or their Property, whether now owned or hereafter acquired,
other than the following ("Permitted Liens"):
(a) any Lien created under any L/C Related Document;
(b) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without
penalty, or to the extent that non-payment thereof is permitted by Section
6.07, provided that no Notice of Lien has been filed or recorded;
(c) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the Ordinary
Course of Business which are not delinquent or remain payable without penalty
or which are being contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale of the
Property subject thereto;
(d) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the Ordinary Course of Business
in connection with workmen's compensation, unemployment insurance and other
social security legislation, including, without limitation, Liens on the assets
of Broadway Insurance Company, Ltd. which are given as security for the
reimbursement obligations of Broadway Insurance Company, Ltd. with respect to
letters of credit supporting workmen's compensation unemployment insurance and
other insurance;
(e) Liens (other than Liens on any collateral required
hereunder) on the Property of the Guarantor or any of its Subsidiaries securing
(i) the performance of bids, trade
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contracts (other than for borrowed money), leases, statutory obligations, and
(ii) other obligations of a like nature; in each case, incurred in the ordinary
Course of Business, provided all such Lions in the aggregate would not (even if
enforced) cause a Material Adverse Effect;
(f) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed;
(g) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the Ordinary Course of Business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the Property subject thereto or interfere
with the ordinary conduct of the businesses of the Guarantor and its
Subsidiaries;
(h) Purchase money security interests on any Property
acquired or held by the Guarantor or its Subsidiaries in the Ordinary Course of
Business, other than any collateral required hereunder, securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such Property; Provided that (i) any such Lien attaches to such
Property concurrently with or within 20 days after the acquisition thereof,
(ii) such Lien attaches solely to the Property so acquired in such transaction,
and (iii) the principal amount of the debt secured thereby does not exceed 100%
of the cost of such Property;
(i) Liens arising from the sale of accounts receivable
and the sale of chattel paper, not exceeding $100,000,000 in the aggregate; and
(j) Liens arising from the sale of chattel paper on June
26, 1992, pursuant to an agreement with Burlington Northern Railroad Company
aggregating not more than $27,200,000, as such sales are more particularly
described on Exhibit 7.02.
7.02 Mergers, Consolidations, Purchases and Sales. The Company
shall not and shall not permit the Guarantor or any of the Guarantor's
Subsidiaries to:
(a) be a party to any merger or consolidation;
(b) transfer, convey, lease or otherwise dispose of all
or any of the assets of the Guarantor and its Subsidiaries taken as a
whole, or sell, transfer, convey, lease or otherwise dispose of any
stock, ownership interest or other equity interest in any Subsidiary
of the Guarantor, with value in the aggregate for all such sales,
transfers, conveyances, leases or other disposals per fiscal year of
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the Guarantor and its Subsidiaries in excess of the Sale Limit; or
(c) sell or assign, with or without recourse, any
accounts receivable or chattel paper, in excess for the aggregate face
amount of all accounts receivable or chattel paper sold and
outstanding at any one time of $100,000,000, excluding the sales of
chattel paper on June 26, 1992, pursuant to an agreement with
Burlington Northern Railroad Company, aggregating not more than
$27,200,000, as such sales are more particularly described on Exhibit
7.02.
Notwithstanding the foregoing:
(x) any wholly-owned Subsidiary of the Guarantor may
merge into the Guarantor or into or with any other wholly-owned
Subsidiary of the Guarantor;
(y) any wholly-owned Subsidiary of the Guarantor may
consolidate with any other wholly-owned Subsidiary of the Guarantor so
long as immediately thereafter 100% of the voting stock or other
ownership interest of the resulting Person is owned by the Guarantor
or another wholly-owned Subsidiary of the Guarantor; and
(z) any wholly-owned Subsidiary of the Guarantor may
sell, transfer, convey, lease or assign all or a substantial part of
its assets to the Guarantor or to a wholly-owned Subsidiary of the
Guarantor;
provided, however, in each of the cases described in the preceding clauses (x),
(y), and (z), that (A) immediately thereafter and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing, and (B)
prior thereto, in any such case involving the Company where the Company is not
the surviving entity, such surviving entity shall assume the obligations of the
Company under this Agreement and the other L/C Related Documents pursuant to an
agreement or document in form and substance satisfactory to the Agent and all
of the Banks, and the Guarantor shall reaffirm its obligations under the
Guaranty pursuant to an agreement or document in form and substance
satisfactory to the Majority Banks.
For the purposes of this Section 7.02, "Sale Limit" means an annual amount
equal to 25% of Consolidated Tangible Net Worth determined as of the end of the
immediately preceding fiscal year of the Guarantor. The term "value" means,
with respect to any asset, stock or other ownership or equity interest disposed
of, the greater of such item's book or fair market value (or the fair market
value, if book value is not applicable) as of the date of disposition, with
"book value" being the value of such item as would appear immediately prior to
such disposition on a
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balance sheet of the owner of such item prepared in accordance with GAAP.
7.03 Transactions with Affiliates. The Company shall not and shall
not permit the Guarantor or any of its Subsidiaries to enter into any
transaction with any Affiliate of the Company or of any such Subsidiary except
as contemplated by this Agreement or in the ordinary course of business and
pursuant to the reasonable requirements of the business of the Company or such
Subsidiary and upon fair and reasonable terms no less favorable to the Company
or such Subsidiary than would obtain in a comparable arm's-length transaction
with a Person not an Affiliate of the Company or such Subsidiary.
7.04 Compliance with ERISA. Except to the extent that such would
not result, in the aggregate for all Plans, in a Material Adverse Effect, the
Company shall not directly or indirectly and shall not permit or suffer any
ERISA Affiliate directly or indirectly (i) to terminate, any Plan subject to
Title IV of ERISA so as to result in any material (in the opinion of the
Majority Banks) liability to the Company or any ERISA Affiliate, (ii) to permit
to exist any ERISA Event or any other event or condition, which presents the
risk of a material (in the opinion of the Majority Banks) liability of the
Company or any ERISA Affiliate, or (iii) to make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from any Multiemployer
Plan so as to result in any material (in the opinion of the Majority Banks)
liability to the Company or any ERISA Affiliate, (iv) to enter into any new
Plan or modify any existing Plan so as to increase its obligations thereunder
except in the ordinary course of business consistent with past practice which
could result in any material (in the opinion of the Majority Banks) liability
to the Company or any ERISA Affiliate, or (v) permit the present value of all
nonforfeitable accrued benefits under each Plan (using the actuarial
assumptions utilized by the PBGC upon termination of a Plan) materially (in the
opinion of the Majority Banks) to exceed the fair market value of Plan assets
allocable to such benefits, all determined as of the most recent valuation date
for each such Plan.
7.05 Change in Business. The Company shall not, and shall not
permit any of its Subsidiaries to, engage in any material line of business
substantially different from those lines of business carried on by it on the
date hereof.
7.06 Change in Structure. Except as permitted under Section 7.02,
the Company shall not and shall not permit the Guarantor or any of its
Subsidiaries to, make any changes in its capital structure (including, without
limitation, in the terms of its outstanding stock) or amend its certificate of
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incorporation or by-laws if, as a result, there would be a reasonable
likelihood of having a Material Adverse Change.
7.07 Accounting Changes. The Company shall not, and shall not
permit the Guarantor or any of its Subsidiaries to, make any significant change
in accounting treatment and reporting practices, except as required by GAAP, or
change the fiscal year of the Guarantor or any of its Subsidiaries, except, in
the case of a Subsidiary of the Guarantor which become a Subsidiary of the
Guarantor after the date hereof, for a change in the fiscal year of such
Subsidiary to make such Subsidiary's fiscal year the same as that of the
Guarantor.
7.08 Other Contracts. The Company shall not enter into any
employment contracts or other arrangements whose terms, including salaries,
benefits and other compensation, are not normal and customary in the industry.
7.09 Current Ratio. The Company shall not permit the Guarantor's
consolidated ratio of (i) Consolidated Current Assets to (ii) Consolidated
Current Liabilities, to be less than 1.15 to 1.0 at any time.
7.10 Consolidated Tangible Net Worth. The Company shall not permit
the Guarantor's Consolidated Tangible Net Worth at any time to be less than (x)
$300,000,000 plus (y) 40% of consolidated net income earned in those fiscal
quarters for which consolidated net income is positive, and which end after
January 1, 1992, and at or prior to such time.
7.11 Indebtedness to Tangible Net Worth Ratio. The Company shall
not permit the Guarantor's ratio of consolidated Indebtedness (excluding the
Guarantor's obligations under the Guaranty and the obligations of the Guarantor
and its Subsidiaries under undrawn standby letters of credit) to Consolidated
Tangible Net Worth to be at any time greater than 1.50 to 1.0.
7.12 Funded Debt to Tangible Net Worth Ratio. The Company shall
not permit the Guarantor's ratio of total Consolidated Funded Debt to
Consolidated Tangible Net Worth to be at any time greater than 1.20 to 1.0.
7.13 Interest Coverage Ratio. The Company shall not permit the
Guarantor's ratio of (a) the sum of Consolidated Operating Income, Consolidated
Interest Expense, and consolidated provision for income taxes, in each case of
the Guarantor and its Subsidiaries on a consolidated basis, to (b) Consolidated
Interest Expense, for any period of four (4) consecutive fiscal quarters to be
less than 1.5 to 1.0.
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ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following events shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to reimburse any drawing when
due or to pay when due any amount of principal of any L/C Borrowing or any
interest, fees or any other amount payable hereunder or pursuant to any other
L/C Related Document; or
(b) Representation or Warranty. Any representation or warranty by
the Company or any of its Subsidiaries or the Guarantor herein, in any L/C
Related Document or which is contained in any certificate, document or
financial or other statement furnished at any time under this Agreement, or in
or under any L/C Related Document, shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any L/C Related Document;
or
(d) Non-Payment of Other Indebtedness. The Guarantor or any of
its Subsidiaries shall default in the payment when due, whether by acceleration
or otherwise, of any Indebtedness of or Indebtedness guaranteed by the
Guarantor or any of its Subsidiaries (other than any Indebtedness of any such
Subsidiary to the Guarantor or to any other Subsidiary of the Guarantor) which
other Indebtedness shall in the aggregate exceed $1,000,000; or
(e) Acceleration of Other Indebtedness. Any event or condition
shall occur which results in the acceleration of the maturity of any
Indebtedness of or Indebtedness guaranteed by the Guarantor or any of its
Subsidiaries (other than any Indebtedness of any such Subsidiary to the
Guarantor or to any other Subsidiary of the Guarantor) or enables the holder or
holders of such other Indebtedness or any trustee or agent for such holders
(any required notice of default having been given) to accelerate the maturity
of such other Indebtedness, which other Indebtedness shall in the aggregate
exceed $1,000,000; or
(f) Other Obligations. The Guarantor or any of its Subsidiaries
shall default in the payment when due, whether by acceleration or otherwise, or
in the performance or observance (subject to any applicable grace period) of
(i) any obligation or agreement of the Guarantor or any of its Subsidiaries to
or with any Bank, or (ii) any material obligation or agreement of
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the Guarantor or any its Subsidiaries to or with any other Person (other than
(x) any such material obligation or agreement constituting or related to
Indebtedness, (y) trade accounts payable, and (z) any material obligation or
agreement of any Subsidiary to the Guarantor or to any other Subsidiary of the
Guarantor), except only to the extent that the existence of any such default is
being contested by the Guarantor or Subsidiary of the Guarantor, as the case
may be, in good faith and by appropriate proceedings and the Guarantor or such
Subsidiary shall have set aside on its books such reserves or other appropriate
provisions therefor as may be required by GAAP; or
(g) Bankruptcy or Insolvency. The Company or any of its
Subsidiaries (i) becomes insolvent or generally fails to pay, or admit in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course substantially
as it is conducted on the Closing Date; (iii) commences any Insolvency
Proceeding or files any petition or answer in any Insolvency Proceeding; (iv)
acquiesces in the appointment of a receiver, trustee, custodian or liquidator
for itself or a substantial portion of its property, assets or business or
effects a plan or other arrangement with its creditors; (v) admits the material
allegations of a petition filed against it in any Insolvency Proceeding, or
(vi) takes any action to effectuate any of the foregoing; or
(h) Involuntary Proceedings. Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Company's or any of its
Subsidiaries' assets and any such proceedings or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; or
(i) ERISA. (i) The Company, the Guarantor or an ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
a Multiemployer Plan; (ii) the Company or an ERISA Affiliate shall fail to
satisfy its contribution requirements under Section 412(c)(11) of the
requirements under Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as defined in
Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension Liabilities is more than
$10,000,000; (iv) in the case of an
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ERISA Event involving the complete or partial withdrawal from a Multiemployer
Plan, the withdrawing employer has incurred a withdrawal liability in an
aggregate amount exceeding $10,000,000; (v) in the case of an ERISA Event not
described in clause (iii) or (iv), the Unfunded Pension Liabilities of the
relevant Plan or Plans exceed $10,000,000; (vi) a Plan that is intended to be
qualified under Section 401(a) of the Code shall lose its qualification, and
the loss can reasonably be expected to impose on the Company or an ERISA
Affiliate liability (for additional taxes, to Plan participants, or otherwise)
in the aggregate amount of $10,000,000 or more; (vii) the commencement or
increase of contributions to, the adoption of, or the amendment of a Plan by,
the Company or an ERISA Affiliate shall result in a net increase in unfunded
liabilities to the Company or an ERISA Affiliate in excess of $10,000,000; or
(viii) the occurrence of any combination of events listed in clauses (iii)
through (vii) that involves a net increase in aggregate Unfunded Pension
Liabilities and unfunded liabilities in excess of $10,000,000; or
(j) Monetary Judgments. One or more final judgments, orders or
decrees shall be entered against the Guarantor or any of its Subsidiaries
involving in the aggregate a liability (not fully covered by insurance) of
$20,000,000 or more, excluding those judgments or decrees (i) that shall have
been outstanding less than 30 calendar days from the entry thereof, (ii) for
and to the extent to which the Guarantor or any of its Subsidiaries is insured
and with respect to which the insurer has assumed responsibility in writing or
for and to the extent to which the Guarantor or any of its Subsidiaries is
otherwise indemnified if the terms of such indemnification and the Person
providing such indemnification are satisfactory to the Agent, or (iii) that
have been stayed pending appeal, provided that no execution or enforcement is
then possible; or
(k) Non-Monetary Judgments. Any non-monetary judgment, order or
decree shall be rendered against the Guarantor or any of its Subsidiaries which
does or could be expected to have a Material Adverse Effect, and either (i)
enforcement proceedings shall have been commenced by any Person upon such
judgment or order or (ii) there shall be any period of ten consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(1) Loss of Licenses. Any Governmental Authority shall revoke or
fail to renew any license, permit or franchise of the Guarantor or any of its
Subsidiaries or the Guarantor or any of its Subsidiaries shall for any reason
lose any license, permit or franchise or the Guarantor or any of its
Subsidiaries shall suffer the imposition of any restraining order, escrow,
suspension or impound of funds in connection with any proceeding
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(judicial or administrative) with respect to any license, permit or franchise,
and any of such could result in a Material Adverse Effect on the Guarantor and
its Subsidiaries; or
(m) Change in Control. Any Change in Control shall occur; or
(n) Guarantor Defaults. The Guarantor shall fail in any material
respect to perform or observe any term, covenant or agreement in the Guaranty;
or the Guaranty shall for any reason be revoked or invalidated, or otherwise
cease to be in full force and effect, or the Guarantor or any other Person
shall contest in any manner the validity or enforceability thereof or deny that
it has any further liability or obligation thereunder; or any event described
at paragraphs (g), (h) or (i) shall occur with respect to the Guarantor; or
(o) L/C Indebtedness Defaults. Notwithstanding any of the
provisions above in this Section 8.01, the Guarantor or any of its Subsidiaries
shall default in any other way in the performance or observance (subject to any
applicable grace period) of any material obligation or agreement of the
Guarantor or any of its Subsidiaries with respect to any L/C Indebtedness.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the majority Banks, (a) declare
the Commitments of each Bank to issue or amend the Letter of Credit to be
terminated, whereupon such Commitments shall forthwith be terminated; (b)
declare the unpaid principal amount of all outstanding L/C Borrowings, all
interest accrued and unpaid thereon and all other amounts payable hereunder to
be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Company;
(c) with respect to any and all contingent, unmatured, or unliquidated
Obligations, declare and require that cash in an amount equal to the aggregate
amount of such Obligations be paid over and pledged to the Agent pursuant to a
pledge and security agreement in the form of Exhibit 2.07, to be held as
additional cash collateral, in which case such amounts shall be immediately
pledged and delivered to the Agent as demanded by the Agent; or (d) exercise
all rights and remedies available to it under this Agreement or the other L/C
Related Documents or applicable law; provided, however, that upon the
occurrence of any event specified in clause (g) or (h) of Section 8.01 above or
upon the occurrence with respect to the Guarantor of any event described in
paragraphs (g) or (h) of Section 8.01 (in the case of such reference to clause
(h) upon the expiration of the 60 day period mentioned therein), the obligation
of each Bank to issue or amend the Letter of Credit shall automatically
terminate and the unpaid principal amount of all outstanding L/C Borrowings and
all interest and other amounts as aforesaid shall automatically
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become due and payable without further act of the Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other L/C Related Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement.
8.04 HLT Status. If at any time after the Closing Date, for any
reason the Company or the transaction contemplated hereby shall be designated
as a highly leveraged transaction ("HLT") in accordance with the applicable
standards adopted by bank regulatory officials, Agent shall provide the Company
with written notice of such designation and the fees and interest rates payable
by the Company shall be amended to reflect HLT pricing based on amounts being
charged at such time by the Agent for interest and fees on HLT credits ("HLT
Rates"). Agent shall provide the Company with notice of the HLT Rates and the
HLT Rates shall apply for all purposes under this Agreement as of the date the
Company or the transaction contemplated hereby is designated as an HLT.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization. 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 L/C Related 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 L/C Related 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
L/C Related Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or 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 L/C
Related Document or otherwise exist against the Agent.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other L/C Related 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.
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9.03 Liability of Agent. None of the Agent, its Affiliates, or any
of their respective officers, directors, employees, agents, or
attorneys-in-fact (collectively, 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 (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 Company or any
Subsidiary or Affiliate of the Company or any officer thereof contained in this
Agreement or in any other L/C Related 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 L/C Related
Document, or the value of any collateral, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other L/C
Related Document, or for any failure of the Company or any other party to any
L/C Related 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 L/C Related
Document, or to inspect the properties, books or records of the Company, the
Guarantor, or any of its Subsidiaries.
9.04 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, telecopy, 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
Company), 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 L/C Related Document unless it shall first receive
such advice or concurrence of the Majority Banks as it deems appropriate and,
if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other L/C Related Document in accordance with a request or
consent of the Majority 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 Sections 4.01 and 4.02, each Bank shall
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be deemed to have consented to, approved or accepted or to be satisfied with
each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to such Bank unless an officer of the
Agent responsible for the transactions contemplated by the L/C Related
Documents shall have received notice from such Bank prior to the execution of
this Agreement by the Agent or prior to an amendment of the Letter of Credit,
as appropriate, specifying its objection thereto and either such objection
shall not have been withdrawn by notice to the Agent to that effect.
9.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
payable to the Agent for the account of the Banks, unless the Agent shall have
received written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Banks. The Agent shall take such
action with respect to such Default or Event of Default as shall be requested
by the Majority Banks in accordance with Article VIII; provided, however, that
unless and until the Agent shall have 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 Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
9.06 Credit Decision. Each Bank expressly 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 Company, the Guarantor, and their Subsidiaries and Affiliates shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent 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 Company, the Guarantor, and their Subsidiaries and
Affiliates and made its own decision to enter into this Agreement and extend
credit to the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon the Agent 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 L/C Related 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 Company and the Guarantor.
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Except for notices, reports and other documents expressly required to be
furnished to the Banks by the Agent hereunder, 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 Company or the Guarantor which may come
into the possession of any of the Agent-Related Persons.
9.07 Indemnification. The Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), ratably
according to the respective amounts of their Commitments, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements of any kind whatsoever
which may at any time (including at any time following the repayment of the
Obligations) be imposed on, incurred by or asserted against the any such person
any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any such
person under or in connection with any of the foregoing; provided, however,
that no Bank shall be liable for the payment to the Agent-Related Persons of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from such person's gross negligence or willful misconduct. Without limitation
of the foregoing, each Bank shall reimburse the Agent promptly upon demand for
its ratable share of any costs or out-of-pocket expenses (including fees and
expenses of counsel and the allocated cost of in-house 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 L/C Related 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 Company. The
obligations of the Banks under this Section 9.07 shall survive the payment of
all Obligations hereunder.
9.08 Agent in Individual Capacity. BofA and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from
and generally engage in any kind of business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent or the Issuing
Bank hereunder and without notice to the Banks. 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 or the Issuing
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Bank, and the terms "Bank" and "Banks" shall include BofA in its individual
capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If
the Agent shall resign as Agent under this Agreement, the Majority Banks, with
the consent of the Company (which consent shall not be unreasonably withheld),
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 shall appoint, after consulting with the Banks and the
Company, 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 rights, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement.
9.10 Collateral Matters.
(a) In the event that the Banks obtain any collateral for the
Obligations, the Agent is authorized on behalf of all the Banks, without the
necessity of any notice to or further consent from the Banks, from time to time
to take any action with respect to any collateral or the security agreements
and other documents relating to such collateral which may be necessary to
perfect and maintain perfected the security interest in and Liens upon such
collateral.
(b) The Banks irrevocably authorize the Agent, at its option and
in its discretion, to release any Lien granted to or held by the Agent upon any
collateral for the Obligations (i) upon termination of the Commitments and
payment in full of all the Obligations payable under this Agreement and under
any other L/C Related Document; (ii) constituting Property sold or to be sold
or disposed of as part of or in connection with any disposition permitted
hereunder; (iii) constituting Property in which the Company or any Subsidiary
of the Company owned no interest at the time the Lien was granted or at any
time thereafter; (iv) constituting Property leased to the Company, the
Guarantor, or any Subsidiary of the Guarantor under a lease which has expired
or been terminated in a transaction permitted under this Agreement or is about
to expire and which has not been, and is not intended by the Company or such
Subsidiary to be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the indebtedness evidenced
thereby has been paid in full; or (vi) if approved, authorized or ratified in
writing by all the Banks as
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provided in subsection 10.01(f). Upon request by the Agent at any time, the
Banks will confirm in writing the Agent's authority to release particular types
or items of Collateral pursuant to this subsection 9.10(b).
(c) Each Bank agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company, the Guarantor, or any of
the Guarantor's Subsidiaries) that the Company's obligation to such Bank under
this Agreement and the other L/C Related Documents is not and shall not be
secured by any real property collateral now or hereafter acquired by such Bank.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other L/C Related Document and no consent
with respect to any departure by the Company therefrom, shall be effective
unless the same shall be in writing and signed by the Majority Banks, and then
such waiver shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Banks
do any of the following:
(a) increase the Commitment of any Bank or subject any Bank to any
additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due hereunder or under any L/C Related
Document;
(c) reduce the principal of, or the rate of interest of any L/C
Borrowing, or of any fees or other amounts payable hereunder or under any L/C
Related Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Letter of Credit which shall be required for the
Banks or any of them to take any action hereunder;
(e) amend this Section 10.01 or Section 2.13;
(f) release any portion of any collateral for the Obligations;
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(g) release the Guarantor from its obligations under Section 2 of
the Guaranty or any amendment of Section 2 of the Guaranty; or
(h) extend the termination date of the Letter of Credit beyond
September 30, 1995;
and, provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks, or all
Banks if so required by this Agreement, affect the rights or duties of the
Agent under this Agreement or any other L/C Related Document.
10.02 Notices.
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context expressly
otherwise provides, telegraphic, telex, facsimile transmission or cable
communication) and mailed, telegraphed, telexed or delivered, (i) if to the
Company, to its address specified on the signature pages hereof, (ii) if to
any Bank, to its Domestic Lending Office, and (iii) if to the Agent, to its
address specified on the signature pages hereof; or, as to the Company or the
Agent, to 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 Company and the
Agent. All notices, requests, and other communications provided for hereunder
shall, if sent by facsimile, telegraphic, or telexed transmission, be confirmed
in writing (other than by facsimile, telegraphic, or telex transmission) sent
by overnight delivery.
(b) All such notices and communications shall, when transmitted by
overnight delivery, telegraphed, telecopied by facsimile, telexed or cabled, be
effective when delivered for overnight delivery or to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, or if delivered, upon delivery, except that
notices pursuant to Article II or VIII shall not be effective until actually
received by the Agent.
(c) The Company acknowledges and agrees that the agreement of the
Agent and the Banks at Article II herein to receive certain notices by
telephone and facsimile is solely for the convenience and at the request of the
Company. The Agent and the Banks shall be entitled to rely on the authority of
any Person purporting to be a Person authorized by the Company to give such
notice and the Agent and the Banks shall not have any liability to the Company
or other Person on account of any action taken or not taken by the Agent and
the Banks in reliance upon such telephonic or facsimile notice. The obligation
of the
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Company to repay the Obligations shall not be affected in any way or to any
extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
10.04 Costs, Expenses and Certain Fees. The Company shall, whether
or not the transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Agent on demand for all costs and
expenses incurred in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to, this Agreement, any L/C Related Document and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including the reasonable
costs and expenses of counsel to the Agent (and the allocated cost of internal
counsel) with respect thereto;
(b) in the event any Bank or the Agent takes any action in
connection with the enforcement or preservation of any rights (including in
connection with any "workout" or restructuring regarding the Letter of Credit,
this Agreement, or any L/C Related Document), pay or reimburse each Bank and
the Agent on demand for all costs and expenses incurred by them in connection
with such enforcement or preservation of any rights (including in connection
with any "workout" or restructuring regarding the Letter of Credit, this
Agreement, or any L/C Related Document) under this Agreement, any L/C Related
Document, and any such other documents, including costs, fees and out-of-pocket
expenses of counsel (and the allocated cost of internal counsel) to the Agent
and to each of the Banks;
(c) pay or reimburse the Agent on demand for all appraisal
(including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of such
internal services), search and filing fees, incurred or sustained by the Agent
in connection with the matters referred to under paragraphs (a) and (b) above,
but, in
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the case of an appraisal, only to the extent it was reasonable to obtain such
appraisal; and
(d) pay to the Agent all fees required by letter agreement between
the Agent and the Company or the Guarantor to be paid whether or not any of the
transactions contemplated by this Agreement are consummated.
10.05 Indemnity. The Company shall pay, indemnify, and hold each
Bank, the Agent and each of their respective officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including fees and expenses of counsel and allocated costs of internal
counsel) of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement and any
other L/C Related Documents or the transactions contemplated herein, and with
respect to any investigation, litigation or proceeding related to this
Agreement or the Letter of Credit or the use thereof (whether or not any
Indemnified Person is a party thereto) (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of such Indemnified
Person. The agreements in this section shall survive payment of all other
Obligations.
10.06 Marshalling; Payments Set Aside. Neither the Agent nor the
Banks shall be under any obligation to marshall any assets in favor of the
Company or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment or payments to the
Agent or the Banks, or the Agent or the Banks enforce their Liens or exercise
their rights of set-off, and such payment or payments or the proceeds of such
enforcement or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid
to a trustee, receiver or any other party in connection with any Insolvency
Proceeding, or otherwise, then to the extent of such recovery the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or set-off had not occurred.
10.07 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of each Bank.
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10.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of (i) the Company (at
all times other than during the existence of an Event of Default), (ii) the
Agent, and (iii) the Issuing Bank, which consent of the Company shall not be
unreasonably withheld, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company or the Agent or the
Issuing Bank shall be required in connection with any assignment and delegation
by a Bank to a Bank Affiliate of such Bank) (each an "Assignee") all or any
ratable part of all of the Commitments and the other rights and obligations of
such Bank hereunder, in a minimum amount of $5,000,000; provided, however,
that (i) the Company, the Agent, and the Issuing Bank may continue to deal
solely and directly with such Bank in connection with the interest so assigned
to an Assignee until (A) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the Agent by such Bank and
the Assignee; and (B) such Bank and its Assignee shall have delivered to the
Company and the Agent an Assignment and Acceptance in the form of Exhibit 10.08
(an "Assignment and Acceptance").
(b) From and after the date that the Agent notifies the assignor
Bank that it has received an executed Assignment and Acceptance and payment of
the processing fee, (i) 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, shall have the rights and
obligations of a Bank under the L/C Related Documents, and (ii) the assignor
Bank 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 the L/C Related Documents.
(c) Immediately upon each Assignee's making its payment under the
Assignment and Acceptance, this Agreement, shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom.
The Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks
(a "Participant") participating interests in the Letter of Credit and the
drawings thereunder, the Commitment of that Bank and the other interests of
that Bank (the "originating Bank") hereunder and under the other L/C Related
Documents; provided, however, that (i) the originating Bank's obligations under
this Agreement shall remain unchanged,
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(ii) the originating Bank shall remain solely responsible for the performance
of such obligations, (iii) the Company and the Agent shall continue to deal
solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and the other
L/C Related Documents, and (iv) no Bank shall transfer or grant any
participating interest under which the Participant shall have rights to approve
any amendment to, or any consent or waiver with respect to, this Agreement or
any other L/C Related Document, except to the extent such amendment, consent or
waiver would require unanimous consent as described in the first proviso to
Section 10.01. In the case of any such participation, the Participant shall not
have any rights under this Agreement, or any of the other L/C Related
Documents, and all amounts payable by the Company hereunder shall be determined
as if such Bank had not sold such participation; except that, if amounts
outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all non-public
information provided to it by the Company or any Subsidiary of the Company, or
by the Agent on such Company's or Subsidiary's behalf, in connection with this
Agreement or any other L/C Related Document, and neither it nor any of its
Affiliates shall use any such information for any purpose or in any manner
other than pursuant to the terms contemplated by this Agreement; except to the
extent such information (i) was or becomes generally available to the public
other than as a result of a disclosure by the Bank, or (ii) was or becomes
available on a non-confidential basis from a source other than the Company,
provided that such source is not bound by a confidentiality agreement with the
Company known to the Bank; provided further, however, that any Bank may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which the Bank is subject or in connection with
an examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; and (D) to such Bank's
independent auditors and other professional advisors. Notwithstanding the
foregoing, the Company authorizes each Bank to disclose to any Participant or
Assignee (each, a "Transferee") and to any prospective Transferee, such
financial and other information in such Bank's possession concerning the
Guarantor or its Subsidiaries which has been delivered to Agent or the Banks
pursuant to this Agreement or which has been
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delivered to the Agent or the Banks by the Company in connection with the
Banks' credit evaluation of the Company prior to entering into this Agreement;
provided that, unless otherwise agreed by the Company, such Transferee agrees
in writing to such Bank to keep such information confidential to the same
extent required of the Banks hereunder.
10.09 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any such
notice being waived by the Company to the fullest extent permitted by law, to
set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Company against any and
all obligations of the Company now or hereafter existing under this Agreement
or any other L/C Related Document irrespective of whether or not the Agent or
such Bank shall have made demand under this Agreement or any L/C Related
Document and although such obligations may be contingent or unmatured. Each
Bank agrees promptly to notify the Company and the Agent after any such set-off
and application made by such Bank; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section 10.09 are in addition to the other
rights and remedies (including without limitation, other rights of set-off)
which the Bank may have.
10.10 Notification of Addresses, Lending Offices, Etc. Each Bank
shall notify the Agent in writing of any changes in the address to which
notices to the Bank should be directed, of addresses of its Domestic Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Agent shall
reasonably request.
10.11 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement in any number of separate counterparts, each
of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
10.12 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
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10.13 Time. Time is of the essence as to each term or provision of this
Agreement and each of the other L/C Related Documents.
10.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS. EACH OF
THE COMPANY, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE BANKS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.15 Waiver of Jury Trial. The Company, the Banks and the Agent waive
their respective rights to a trial by jury of any claim or cause of action
based upon or arising out of or related to this Agreement, the other L/C
Related Documents or the transactions contemplated hereby or thereby in any
action, proceeding or other litigation of any type brought by any of the
parties against any other party or parties, whether with respect to contract
claims, tort claims, or otherwise. The Company, the Banks and the Agent agree
that any such claim or cause of action shall be tried by a court trial without
a jury. Without limiting the foregoing, the parties further agree that their
respective right to a trial by jury is waived by operation of this section as
to any action, counterclaim or other proceeding which seeks, in whole or in
part, to challenge the validity or enforceability of this Agreement or the
other L/C Related Documents or any provision hereof or thereof. This waiver
shall apply to any subsequent amendments, renewals, supplements or
modifications to this Agreement and the other L/C Related Documents.
10.16 Entire Agreement. This Agreement, together with the other L/C
Related Documents, embodies the entire Agreement and understanding among the
Company, the Banks and the Agent and supersedes all prior or contemporaneous
agreements and understandings of such persons, verbal or written, relating to
the subject matter hereof and thereof (including, without limitation, the
Letter of Credit Application and Agreement,
72
<PAGE> 79
dated June 11, 1992, executed by the Company in favor BofA), except for the fee
letters referenced in subsections 2.08(b) and 2.09(a) and any prior
arrangements made with respect to the payment by the Company of (or any
indemnification for) any fees, costs or expenses payable to or incurred (or to
be incurred) by or on behalf of the Agent or the Banks.
10.17 Interpretation. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Agent, the Banks, the Company
and other parties, and is the product of all parties hereto. Accordingly, this
Agreement and the other L/C Related Documents shall not be construed against
the Banks or the Agent merely because of the Agent's or Banks' involvement in
the preparation of such documents and agreements.
73
<PAGE> 80
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in California by their proper and duly authorized
officers as of the day and year first above written.
MORRISON KNUDSEN CORPORATION,
an Ohio corporation
By: /s/ E.J. GORMAN
---------------------------------
Title: Chief Financial Officer
By: /s/ A.J. MOORE
---------------------------------
Title: Assistant Treasurer
Address
720 Park Boulevard
Boise, ID 83729
Attention: Corp. Finance
Telephone: (208) 386-5007
Telecopier: (208) 386-5625
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
As Agent
By: /s/ ALIDA BUCHANAN
---------------------------------
Title: Senior Agency Officer
315 Montgomery Street, 15th Floor
San Francisco, CA 94104
Attn: Global Agency
Telephone: (415) 622-8240
Facsimile: (415) 622-4894
74
<PAGE> 81
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a
Bank and as Issuing Bank
By: /s/ RICHARD J. CERF
----------------------------------
Title: Vice President
By:
----------------------------------
Title:
-------------------------------
Commitment Amount: $15,000,000
Address:
41st Floor
555 California Street
San Francisco, CA 94104
Attention: Richard J. Cerf, VP
Telephone: (415) 622-6177
Telecopier: (415) 622-2514
Address for the Issuing Bank:
4th Floor
1850 Gateway Boulevard
Concord, CA 94520-3281
Attention: Gayle Russo
Telephone: (510) 675-7353
Telecopier: (510) 675-7531
(510) 675-7532
75
<PAGE> 82
ABN AMRO BANK
/s/ LEE-LEE MIAO
By: ----------------------------------
Title: Vice President
By: /s/ R. CLAY JACKSON
----------------------------------
Title: Vice President
Commitment Amount: $10,000,000
Address:
Suite #2323
One Union Square
Seattle, WA 98101
Attention: Lee-Lee Miao
Telephone: (206) 654-0362
Telecopier: (206) 682-5641
76
<PAGE> 83
BANK OF MONTREAL
By: /s/ J. DONALD HIGGINS
----------------------------------
Name: J. Donald Higgins
Title: Managing Director
By:
----------------------------------
Title:
-------------------------------
Commitment Amount: $10,000,000
Address:
L/C Processing Center
311 West Monroe Street
13th Floor
Chicago, IL 60606
Copy to:
707 Wilshire Boulevard
Suite 4840
Los Angeles, CA 90017-3658
Attention: Alberta Rosby
Telephone: (213) 239-0638
Telecopier: (213) 239-0680
77
<PAGE> 84
THE BANK OF NOVA SCOTIA
By: /s/ [unreadable signature]
----------------------------------
Title: Representative
By: /s/ [unreadable signature]
----------------------------------
Title: Vice President
Commitment Amount: $10,000,000
Address:
48th Floor
101 California Street
San Francisco, CA 94111
Attention:
Telephone: (415) 986-1100
Telecopier: (415) 397-0791
78
<PAGE> 85
THE BANK OF TOKYO LIMITED
By: /s/ [unreadable signature]
----------------------------------
Title: General Manager.
By:
----------------------------------
Title:
-------------------------------
Commitment Amount: $13,000,000
Address:
Seattle Branch
Suite #1100
1201 Third Avenue
Seattle, WA 98101
Attention: Rokuro Kurashige
Telephone: (206) 382-6026
Telecopier: (206) 382-6067
79
<PAGE> 86
BANQUE INDOSUEZ
By: /s/ [unreadable signature]
-----------------------------------
Title: First VP
--------------------------------
By: /s/ [unreadable signature]
----------------------------------
Title: VP
--------------------------------
Commitment Amount: $12,000,000
Address:
Suite #2040
333 S. Grand Avenue
Los Angeles, CA 90071
Attention: S. Poretzky
Telephone: (213) 614-1800
Telecopier: (213) 614-0819
80
<PAGE> 87
BANQUE NATIONALE DE PARIS
By: /s/ DON HART
------------------------------
Title: VP
----------------------------
By: /s/ KATHERINE WOLFE
------------------------------
Title: AVP
---------------------------
Commitment Amount: $12,000,000
Address:
180 Montgomery Street
San Francisco, CA 94104-4205
Attention: Don Hart
(Operational Matters)
Telephone: (415) 956-2511
Telecopier: (415) 296-9041
Katherine Wolfe (Credit Matters)
Telephone: (415) 956-0707
Fax: (415) 296-8954
81
<PAGE> 88
BANQUE PARIBAS
By: /s/ LEE S. BUCKNER
------------------------------
Title: V.P.
---------------------------
By: /s/ [unreadable signature]
------------------------------
Title: S.V.P
---------------------------
Commitment Amount: $13,000,000
Address:
101 California Street
Suite 3150
San Francisco, CA 94111-5870
Attention: Mr. Lee S. Buckner
Telephone: (415) 398-6811
Telecopier: (415) 398-4240
82
<PAGE> 89
CIBC INC.
By: /s/ ALICIA E. ROMO
------------------------------
Title: Assistant Vice President
---------------------------
By:
-------------------------------
Title:
----------------------------
Commitment Amount: $13,000,000
Address for administrative matters:
Suite #01200
Two Paces West
2727 Paces Ferry Road
Atlanta, GA 30339
Attention: Susan Ward
Telephone: (404) 319-4833
Telecopier: (404) 319-4950
Address for credit matters:
300 South Grand Ave., Suite 2700
Los Angeles, CA 90071
Attention: Alicia E. Romo
Telephone: (213) 617-6218
Telecopier: (213) 617-1696
83
<PAGE> 90
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ WILLIAM J. FISCHER
-------------------------------
Name: William J. Fischer
Title: Authorized Signatory
----------------------------
CREDIT LYONNAIS SAN FRANCISCO BRANCH
By: /s/ ROBIN S. YIM
-------------------------------
Name: Robin S. Yim
Title: Assistant Vice President
----------------------------
Commitment Amount: $13,000,000
Address:
San Francisco Branch
Four Embarcadero Center
Suite 3470
San Francisco, CA 94111-5980
Attention: ________________________
Telephone: (415) 956-7002
Telecopier: (415) 956-7008
84
<PAGE> 91
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
Los Angeles Agency
By: /s/ [unreadable signature]
------------------------------
Title: Deputy General Manager
---------------------------
By: _______________________________
Title: ____________________________
Commitment Amount: $13,000,000
Address:
444 South Flower Street
Suite 3700
Los Angeles, CA 90071-2938
Attention: Curt M. Biren
-----------------------
Telephone: (213) 629-5777
Telecopier: (213) 622-6908
85
<PAGE> 92
NATIONAL WESTMINSTER BANK PLC
By: /s/ MICHAEL E. KEATING
-----------------------------
Title: Vice President
--------------------------
By: ______________________________
Title: ___________________________
Commitment Amount: $10,000,000
Address:
Suite #1000
400 South Hope Street
Los Angeles, CA 90071-2891
Attention: _______________________
Telephone: (213) 624-8555
Telecopier: (213) 623-6540
86
<PAGE> 93
ROYAL BANK OF CANADA
By: /s/ BRIAN W. DIXON
-----------------------------
Name: Brian W. Dixon
Title: Senior Manager
--------------------------
By: /s/ [unreadable signature]
------------------------------
Title: Vice President
---------------------------
Commitment Amount: $10,000,000
Address:
Suite #800
600 Wilshire Boulevard
Los Angeles, CA 90017-3220
Attention: Patrick Rounds
Senior Manager
Telephone: (213) 955-5300
Telecopier: (213) 955-5350
87
<PAGE> 94
SAN PAOLO BANK
By: /s/ GIORGIO CALVI
-----------------------------
Name: Giorgio Calvi
Title: Branch Manager
--------------------------
By: /s/ CRAIG S. NASELOW
-----------------------------
Name: Craig S. Naselow
Title: Assistant Vice President
--------------------------
Commitment Amount: $10,000,000
Address:
45th Floor
444 South Flower Street
Los Angeles, CA 90017
Attention: _______________________
Telephone: (213) 489-3100
Telecopier: (213) 622-2514
88
<PAGE> 95
UNION BANK OF SWITZERLAND
By: /s/ THOMAS G. JACKSON
-----------------------------
Name Thomas G. Jackson
Title: Vice President
--------------------------
By: /s/ PETER S. HUMBER
-----------------------------
Name: Peter S. Humber
Title: Vice President
-------------------------
Commitment Amount: $13,000,000
Address:
Suite #4600
444 South Flower Street
46th Floor
Los Angeles, CA 90071-2901
Attention: Peter S. Humber
Vice President
----------------------
Telephone: (213) 489-0650
Telecopier: (213) 489-0637
89
<PAGE> 96
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ [unreadable signature]
-----------------------------
Title: ?
---------------------------
By: /s/ [unreadable signature]
-----------------------------
Title: ?
--------------------------
Commitment Amount: $13,000,000
Address:
23rd Floor
1211 Avenue of the Americas
New York, NY 10036
Attention: Credit Department
Telephone: (212) 852-6000
Telecopier: (212) 852-6300
With a copy to:
Suite 6750
633 W. 5th Street
Los Angeles, CA 90071
Attention: John T. Seifert
Telephone: (213) 623-9041
Telecopier: (213) 623-4706
90
<PAGE> 97
DAVID A. CHANNER
Exhibit 2.14
Guaranty Morrison Knudsen Corporation
This Guaranty is entered into as of August 4, 1992, between MORRISON
KNUDSEN CORPORATION, a Delaware corporation (the "Guarantor"), and Bank of
America National Trust and Savings Association as agent (in such capacity, the
"Agent") for the banks (collectively "Banks" and individually "Bank") party to
the Standby Letter of Credit and Reimbursement Agreement referred to below.
Recitals.
A. Morrison Knudsen Corporation, an Ohio corporation (the
"Borrower"), the Banks, and the Agent entered into a Standby Letter of Credit
and Reimbursement Agreement dated as of August 4, 1992. The Standby Letter of
Credit and Reimbursement Agreement as now in effect or hereafter extended,
renewed or amended is hereinafter called the "Reimbursement Agreement".
B. The Banks are willing to make a letter of credit available to
the Borrower as provided in the Reimbursement Agreement on the condition that
all of the Borrower's indebtedness and obligations under the Reimbursement
Agreement are guaranteed by Guarantor.
C. In order to induce the Banks to make said letter of credit
available to the Borrower as provided in the Reimbursement Agreement, and for
other valuable consideration, the Guarantor issues this Guaranty of the
Borrower's indebtedness and obligations under the Reimbursement Agreement.
1. Definitions.
Unless otherwise defined herein, capitalized terms used in this
Guaranty have the meanings given to them in the Reimbursement Agreement.
2. Guaranty.
2.1 Guaranty. The Guarantor hereby unconditionally guarantees
and promises to pay to the Agent and each Bank, or order, on demand, any and
all indebtedness and obligations of the Borrower to the Agent and each Bank
from time to time outstanding under or in respect to the Reimbursement
Agreement (the "Obligations"). The Agent, the Banks or any Bank may permit the
indebtedness of the Borrower to the Agent, the Banks or any Bank to include
indebtedness other than the Obligations, and may apply any
1
<PAGE> 98
amounts received from any source, other than from the Guarantor, to that
portion of Borrower's indebtedness to the Agent, the Banks, or any Bank, which
is not a part of the Obligations.
2.2 Obligations Independent. The obligations hereunder are joint
and several, and independent of the obligations of the Borrower, and a separate
action or actions may be brought and prosecuted against the Guarantor whether
action is brought against the Borrower or whether the Borrower be joined in any
such action or actions. The Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder.
2.3 Authorization of Renewals, Etc. The Guarantor authorizes
the Agent and each Bank, without notice or demand and without affecting its
liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate or otherwise
change the time for payment, or otherwise change the terms, of the Obligations,
including increase or decrease of the rate of interest thereon, or otherwise
change the terms of the Reimbursement Agreement;
(b) receive and hold security for the payment of this
Guaranty or the Obligations and exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of
sale thereof as the Agent, the Banks or any Bank, as the case may be, in its or
their discretion may determine; and
(d) release or substitute any one or more of any
endorsers or guarantors of the Obligations.
The performance or occurrence of any of the acts or events described in clauses
(a), (b), (c), and (d) above with respect to indebtedness of the Borrower,
other than the Obligations, to the Agent, the Banks, or any Bank, shall not
affect the liability of the Guarantor hereunder.
2.4 Waiver of Certain Rights. The Guarantor waives any right to
require the Agent or any Bank to:
(a) proceed against the Borrower;
(b) proceed against or exhaust any security for the
Obligations or any other indebtedness of the Borrower to the Agent,
the Banks, or any Bank; or
2
<PAGE> 99
(c) pursue any other remedy in the Agent's or any such
Bank's power whatsoever.
2.5 Waiver of Certain Defenses. The Guarantor waives any defense
arising by reason of any disability or other defense of the Borrower, or the
cessation from any cause whatsoever of the liability of the Borrower, or any
claim that the Guarantor's obligations exceed or are more burdensome than those
of the Borrower.
2.6 Waiver of Subrogation. The Guarantor waives any right of
subrogation, reimbursement, indemnification, and contribution (contractual,
statutory or otherwise), including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S. Code) or any
successor statute, against the Borrower arising from the existence or
performance of this Guaranty and the Guarantor waives any right to enforce any
remedy which the Agent, the Banks or any Bank now has or may hereafter have
against the Borrower, and waives any benefit of, and any right to participate
in, any security now or hereafter held by the Agent, the Banks or any Bank
securing the Obligations. The Agent, the Banks or any Bank may foreclose,
either by judicial foreclosure or by exercise of power of sale, any deed of
trust or mortgage securing the Obligations or any other indebtedness of the
Borrower to the Agent, the Banks or any Bank, and, even if the foreclosure may
destroy or diminish the Guarantor's rights against the Borrower, the Guarantor
shall be liable to the Agent and each Bank for any part of the Obligations
remaining unpaid after the foreclosure.
2.7 Waiver of Presentments, Etc. The Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Obligations or any other indebtedness of Borrower to the Agent, the Banks or
any Bank.
2.8 Information Relating to Borrower. The Guarantor
acknowledges and agrees that it shall have the sole responsibility for
obtaining from the Borrower such information concerning the Borrower's
financial condition or business operations as the Guarantor may require, and
that neither the Agent nor any Bank has any duty at any time to disclose to the
Guarantor any information relating to the business operations or financial
condition of the Borrower.
2.9 Right of Setoff. In addition to any rights and remedies of
the Banks provided by law, if an Event of Default exists, each Bank is
authorized at any time and from time to time, without prior notice to the
Guarantor, any such notice being waived
3
<PAGE> 100
by the Guarantor to the fullest extent permitted by law, to set-off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Bank to or
for the credit or the account of the Guarantor against any and all obligations
of the Guarantor now or hereafter existing under this Guaranty or any other L/C
Related Document, irrespective of whether or not the Agent or such Bank shall
have made demand under this Guaranty or any L/C Related Document and although
such obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Guarantor and the Agent after any such set-off and application made
by such Bank; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section 2.9 are in addition to the other rights and remedies
(including without limitation, other rights of set-off) which such Bank may
have.
2.10 Subordination. Any obligations of the Borrower to the
Guarantor, now or hereafter existing, including but not limited to any
obligations to the Guarantor as subrogee of the Agent, the Banks or any Bank
or resulting from the Guarantor's performance under this Guaranty, are hereby
subordinated to the Obligations and all other indebtedness of the Borrower to
the Agent, the Banks, or any Bank. Such obligations of the Borrower to the
Guarantor if the Majority Banks so request shall be enforced and performance
received by the Guarantor as trustee for the Agent and the Banks and the
proceeds thereof shall be paid over to the Agent and the Banks on account of
the Obligations, but without reducing or affecting in any manner the liability
of the Guarantor under the other provisions of this Guaranty.
2.11 Reinstatement of Guaranty. If this Guaranty is returned or
canceled, and subsequently any payment or transfer of any interest in property
by the Borrower to the Agent or any Bank in fulfillment of any Obligation is
rescinded or must be returned by the Agent or any Bank to the Borrower, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior return or cancellation.
2.12 Powers. It is not necessary for the Agent or any Bank to
inquire into the powers of the Borrower or of the officers, directors, partners
or agents acting or purporting to act on its behalf, and any Obligations made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
2.13 Taxes. (a) (i) If any taxes (other than taxes on net income
(A) imposed by the country or any subdivision of the country in which a Bank's
principal office or actual lending office is located and (B) measured by the
United States taxable income such Bank would have received if such Bank's share
in all payments
4
<PAGE> 101
under or in respect of this Guaranty and any instrument or agreement required
from the Guarantor under the Reimbursement Agreement were exempt from taxes
levied by the Guarantor's country) are at any time imposed on such Bank's
share in any payments made under or in respect of this Guaranty and any
instrument or agreement required from the Guarantor under the Reimbursement
Agreement including, but not limited to, payments made pursuant to this
Section, the Guarantor shall pay all such taxes and shall also pay to such
Bank, on demand, all additional amounts which such Bank specifies as necessary
to preserve the after-tax yield such Bank would have received if such taxes had
not been imposed.
(ii) The additional amounts necessary to preserve the after-tax
yield such Bank would have received if such taxes had not been imposed shall be
calculated pursuant to the formula:
(w) (t) (i)
y = -------------
1-w-t
where the terms are defined as follows:
y = additional payment to be made to the Bank
w = withholding tax rate levied by foreign government
t = the Bank's combined Federal and state tax rate
i = stated interest to be paid on Obligations (base rate plus
quoted spread, all multiplied by the amount of such
Obligations)
1 = one
(b) The Guarantor will provide such Bank with original
tax receipts, notarized copies of tax receipts, or such other documentation as
will prove payment of tax in a court of law applying the United States Federal
Rules of Evidence, for all taxes paid by the Guarantor pursuant to subparagraph
(a) above. The Guarantor will deliver receipts to such Bank within 30 days
after the due date for the related tax.
3. Representations.
The Guarantor represents and warrants to the Agent and each Bank that:
5
<PAGE> 102
3.1 Corporate Existence and Power. The Guarantor and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on
its business and to execute, deliver and perform its obligations under the L/C
Related Documents;
(c) is duly qualified as a foreign corporation, licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in Section 3.1(c) or Section 3.1(d), to the
extent that the failure to do so could not have a Material Adverse Effect,
and except to the extent that all of the following are true: (i) each
Subsidiary for which the representation and warranty in either Section 3.1(a)
or Section 3.1(b) above are not true is a Subsidiary of the Guarantor other
than the Borrower, has net worth less than $500,000, and had annual revenue for
its most recent fiscal year less than $1,000,000, (ii) the Subsidiaries for
which the representation and warranty in either Section 3.1(a) or Section
3.1(b) above are not true have net worth less than $5,000,000 in the aggregate,
and had revenue, in their most recent fiscal year, less than $10,000,000 in the
aggregate, and (iii) the failure of the representation and warranty in Section
3.1(a) or in Section 3.1(b) above to be true does not have a Material
Adverse Effect.
3.2 Corporate Authorization; No Contravention. The execution,
delivery, and performance by the Guarantor and its Subsidiaries of this
Guaranty and any other L/C Related Document to which such Person is party,
have been duly authorized by all necessary corporate action and do not and will
not:
(a) contravene the terms of that Person's certificate of
incorporation, bylaws or other organization document;
(b ) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any indenture, agreement,
lease, instrument, Contractual Obligation, injunction, order, decree or
undertaking to which such Person is a party; or
(c) violate any Requirement of Law.
6
<PAGE> 103
3.3 Governmental Authorization. Except for those that have been
obtained as of the date hereof, no approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with the execution, delivery, performance
or enforcement against the Guarantor or any of its Subsidiaries of this
Guaranty or any other L/C Related Document or any other instrument or agreement
required under the Reimbursement Agreement to be made by the Guarantor or any
of its Subsidiaries.
3.4 Binding Effect. This Guaranty and each other L/C Related
Document to which the Guarantor or any of its Subsidiaries is a party
constitute the legal, valid and binding obligations of the Guarantor and such
Subsidiaries to the extent any such Person is a party thereto, enforceable
against such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
3.5 Litigation. (a) Except as set forth in Schedule 5.05
of the Reimbursement Agreement, there are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of the Guarantor,
threatened or contemplated at law, in equity, in arbitration or before any
Governmental Authority, against the Guarantor or any of its Subsidiaries or
any of their respective properties which:
(i) purport to affect or pertain to the Contract,
this Agreement, or any L/C Related Document, or any of the
transactions contemplated hereby or thereby; or
(ii) if determined adversely to the Guarantor or
any of its Subsidiaries, could reasonably be expected to have a
Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin
or restrain the execution, delivery and performance of the Contract, this
Guaranty or any other L/C Related Document, or directing that the transactions
provided for herein or therein not be consummated as herein or therein
provided.
(b) The proceedings brought by Local No. 719, United Auto
Workers and Carole J. Travis and Bombardier Corporation and Pullman Technology,
Inc. against Metra and Morrison Knudsen Corporation, which proceedings began in
the Circuit Court of Cook County, Illinois and had case numbers 92-CH-01041 and
92-CH-01042, and all related lawsuits, actions, litigation, and other
7
<PAGE> 104
proceedings, whether at law or in equity, have been dismissed with prejudice.
3.6 No Default. No Default or Event of Default exists or would
result from the incurring of obligations by the Guarantor under this Guaranty
or any other L/C Related Document. Neither the Guarantor nor any of its
Subsidiaries, is in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such defaults, could
have a reasonable likelihood of having a Material Adverse Effect.
3.7 ERISA Compliance.
(a) Except for Multiemployer Plans not maintained or
sponsored by the Company or the Guarantor and to which the Company or the
Guarantor first contributed or was first obligated to contribute between
January 1, 1990, and the Closing Date, Schedule 5.07 of the Reimbursement
Agreement lists all Plans maintained or sponsored by the Guarantor or to which
it is obligated to contribute, and separately identifies Plans intended to be
Qualified Plans and Multiemployer Plans. All written descriptions thereof
provided to the Agent are true and complete in all material respects.
(b) Except for Multiemployer Plans not maintained or
sponsored by the Company or the Guarantor but to which the Company or the
Guarantor contributes or is obligated to contribute, each Plan is in compliance
in all material respects with the applicable provisions of ERISA, the Code and
other Federal or state law, including all requirements under the Code or ERISA
for filing reports (which are true and correct in all material respects as of
the date filed), except to the extent that non-compliance for all Plans in the
aggregate would not have a Material Adverse Effect, and benefits have been paid
in accordance with the provisions of the Plan.
(c) Except for Multiemployer Plans not maintained or
sponsored by the Company or the Guarantor but to which the Company or the
Guarantor contributes or is obligated to contribute, each Qualified Plan has
been determined by the IRS to qualify under Section 401 of the Code, and the
trusts created thereunder have been determined to be exempt from tax under the
provisions of Section 501 of the Code and to the best knowledge of the
Guarantor nothing has occurred which would cause the loss of such qualification
or tax-exempt status.
(d) Except as set forth in Schedule 5.07 of the
Reimbursement Agreement, neither the Company, the Guarantor, nor any ERISA
Affiliate of the Guarantor has any outstanding liability under Title IV of
ERISA with respect to any Plan maintained or
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sponsored by the Guarantor or any ERISA Affiliate (as to which the Guarantor or
the Borrower is or may be liable), nor with respect to any Plan to which the
Guarantor or any ERISA Affiliate (wherein the Borrower or the Guarantor is or
may be liable) contributes or is obligated to contribute.
(e) Except as set forth on Schedule 5.07 of the
Reimbursement Agreement, none of the Qualified Plans subject to Title IV of
ERISA has any Unfunded Pension Liability as to which the Borrower or the
Guarantor is or may be liable.
(f) Except as set forth in Schedule 5.07 of the
Reimbursement Agreement, no Plan maintained or sponsored by the Borrower or the
Guarantor provides medical or other welfare benefits or extends coverage
relating to such benefits beyond the date of a participant's termination of
employment with the Borrower or the Guarantor, except to the extent required
by Section 4980B of the Code and at the sole expense of the participant or the
beneficiary of the participant to the fullest extent permissible under such
Section of the Code. The Borrower and Guarantor have complied in all material
respects with the notice and continuation coverage requirements of Section
4980B of the Code.
(g) Except for Multiemployer Plans to which the Company
or the Guarantor contributes or is obligated to contribute, and except as set
forth in Schedule 5.07 of the Reimbursement Agreement, no ERISA Event has
occurred or is reasonably expected to occur with respect to any Plan maintained
or sponsored by the Borrower or the Guarantor or to which the Borrower or the
Guarantor is obligated to contribute.
(h) There are no pending or, to the best knowledge of the
Guarantor, threatened claims, actions or lawsuits, other than routine claims
for benefits in the usual and ordinary course, asserted or instituted against
(i) any Plan maintained or sponsored by the Borrower or the Guarantor or their
respective assets, (ii) any member of the Controlled Group with respect to any
Qualified Plan of the Borrower or the Guarantor, or (iii) any fiduciary with
respect to any Plan for which the Borrower or the Guarantor may be directly or
indirectly liable, through indemnification obligations or otherwise.
(i) Except as set forth in Schedule 5.07 of the
Reimbursement Agreement, neither the Borrower nor the Guarantor has incurred
nor reasonably expects to incur (i) any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan or (ii) any liability under Title IV of ERISA (other than
premiums due and not delinquent under Section 4007 of ERISA) with respect to a
Plan.
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(j) Except as set forth in Schedule 5.07 of the
Reimbursement Agreement, neither the Borrower nor the Guarantor has transferred
any Unfunded Pension Liability outside of the Controlled Group or otherwise
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
(k) Neither the Borrower nor the Guarantor has engaged,
directly or indirectly, in a non-exempt prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with any Plan
which has a reasonable likelihood of having a Material Adverse Effect.
3.9 Title to Properties. The Guarantor and each of its
Subsidiaries has good record and marketable title in fee simple to or valid
leasehold interests in all its property, except for such defects in title as
could not, individually or in the aggregate, have a Material Adverse Effect.
The property of the Guarantor and each of its Subsidiaries is free and clear of
all Liens or rights of others, except Permitted Liens. Except as listed on
Schedule 5.09 of the Reimbursement Agreement, neither the Guarantor nor any
Subsidiary of the Guarantor has any Lien on any of its property or assets in
excess of $5,000,000.
3.10 Taxes. The Guarantor and each of its Subsidiaries have filed
all Federal and other material tax returns and reports required to be filed and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed or
recorded. There is no proposed tax assessment against the Guarantor or any of
its Subsidiaries which would, if the assessment were made, have a Material
Adverse Effect. All payments under or in respect of this Guaranty and any
instrument or agreement required from Guarantor under the Reimbursement
Agreement are exempt from tax other than taxes on net income imposed by the
country or any subdivision of the country in which a Bank's principal office or
actual lending office is located.
3.11 Financial Condition.
(a) The audited consolidated financial statements of
financial condition of the Guarantor and its Subsidiaries dated December 31,
1991, and the related consolidated statements of operations, stockholders'
equity and cash flows for the fiscal year ended on that date, and the unaudited
consolidated financial statements of financial condition of the Guarantor and
its Subsidiaries dated March 31, 1992, and the related consolidated
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statements of operations, stockholders' equity and cash flows for the fiscal
year ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein;
(ii) are complete, accurate and fairly present the
financial condition of the Guarantor and its Subsidiaries as of the
date thereof and results of operations for the period covered thereby;
and
(iii) show all material indebtedness and other
liabilities, direct or contingent of the Guarantor and its
subsidiaries as of the date thereof (including liabilities for taxes
and material commitments).
(b) Since March 31, 1992, there has been no Material
Adverse Effect.
3.12 Environmental Matters.
(a) Except as specifically identified in Schedule 5.12 of
the Reimbursement Agreement, the operations of the Guarantor and each of its
subsidiaries comply in all respects with all Environmental Laws except such
non-compliance which would not result in liability in excess of $10,000,000 in
the aggregate.
(b) Except as specifically identified in Schedule 5.12 of
the Reimbursement Agreement, each of the Guarantor and its Subsidiaries has
obtained all licenses, permits, authorizations and registrations required under
any Environmental Law necessary for its operations, and all such Environmental
Permits are in good standing, and each of the Guarantor and its Subsidiaries is
in compliance with all terms and conditions of such Environmental Permits.
(c) Except as specifically identified in Schedule 5.12 of
the Reimbursement Agreement, neither the Guarantor nor any of its Subsidiaries
or any of the present property or operations of any of them is subject to any
outstanding written order from or agreement with any Governmental Authority or
other Person, nor subject to any judicial or docketed administrative
proceeding, respecting any Environmental Law, Environmental Claim or Hazardous
Material.
(d) Except as specifically identified in Schedule 5.12 of
the Reimbursement Agreement, there are no conditions or circumstances which may
give rise to any Environmental Claim arising from the operations of the
Guarantor or any of its
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Subsidiaries, including Environmental Claims associated with any operations of
the Guarantor or any of its Subsidiaries with a potential liability in excess
of $10,000,000 in the aggregate. Without limiting the generality of the
foregoing, (i) neither the Guarantor nor any of its Subsidiaries has any
underground storage tanks (x) that are not properly registered or permitted
under applicable Environmental Laws or (y) that are leaking or disposing of
Hazardous Materials off-site and (ii) the Guarantor and its Subsidiaries have
notified all of their employees of the existence, if any, of any health hazard
arising from the conditions of their employment and have met all notification
requirements under Title III of CERCLA or any other Environmental Law.
3.13 Regulated Entities. None of the Guarantor, any Person
controlling the Guarantor, or any Subsidiaries of the Guarantor, is (a) an
"Investment Company" within the meaning of the Investment Company Act of 1940;
or (b) subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code or any other Federal or state statute or regulation limiting its
ability to incur Indebtedness.
3.14 No Burdensome Restrictions. Neither the Guarantor nor any of
its Subsidiaries is a party to or bound by any Contractual Obligation or
subject to any charter or corporate restriction or any Requirement of Law which
could reasonably be expected to have a Material Adverse Effect or insofar as
the Guarantor may reasonably foresee has a material likelihood so to affect,
the business, operations, properties, assets, or condition (financial or
otherwise) of the Guarantor and its Subsidiaries taken as a whole or the
Borrower and its Subsidiaries taken as a whole or the rights of the Banks under
any L/C Related Document, or may impair the ability of any of the Guarantor or
any of its Subsidiaries to perform or observe its obligations under this
Agreement.
3.15 Solvency. Each of the Guarantor and its Subsidiaries is
Solvent.
3.16 Labor Relations. There are no strikes, lockouts or other
labor disputes against the Guarantor or any of its Subsidiaries, or, to the
best of the Guarantor's knowledge, threatened against or affecting the
Guarantor or any of its Subsidiaries, which would have a Material Adverse
Effect on the Guarantor and its Subsidiaries, and no significant unfair labor
practice complaint is pending against the Guarantor or any of its Subsidiaries
or, to the best knowledge of the Guarantor, threatened against any of them
before any Governmental Authority, which would have a Material Adverse Effect
on the Guarantor and its Subsidiaries.
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3.17 Copyrights, Patents, Trademarks and Licenses, Patents, etc.
Each of the Guarantor and its Subsidiaries owns or is licensed or otherwise has
the right to use all of the patents, trademarks, service marks, trade names,
copyrights, franchises, authorizations and other rights that are reasonably
necessary for the operation of its businesses, without conflict with the rights
of any other Person. To the best knowledge of the Guarantor, no slogan or
other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed by the Guarantor or
any of its Subsidiaries infringes upon any rights owned by any other Person;
except as set forth on Schedule 5.17 of the Reimbursement Agreement, no claim
or litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Guarantor,
proposed, which, in either case, would be likely to result in a Material
Adverse Effect.
3.18 Subsidiaries. The Guarantor has no Subsidiaries other than
those listed on Schedule 5.18(c) of the Reimbursement Agreement and has no
equity investments in any other corporation or entity other than those listed
on Schedule 5.18(d) of the Reimbursement Agreement.
3.19 Broker's or Transaction Fees. Neither the Guarantor nor any
of its Subsidiaries has any obligation to any Person in respect of any
finder's, broker's or investment banker's fee in connection with the
transactions contemplated hereby.
3.20 Insurance. The properties of the Guarantor and its
Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Guarantor or such Subsidiary
operates.
3.21 The Contract. (a) The Contract has been executed and
delivered by the Company, and the execution, delivery and performance by the
Company, the Guarantor and their respective Subsidiaries of the Contract and
any related documents and agreements to which such Person is party, have been
duly authorized by all necessary corporate action and do not and will not:
(i) contravene the terms of that Person's
certificate of incorporation, bylaws or other organization document;
(ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any indenture,
agreement, lease, instrument, Contractual
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Obligation, injunction, order, decree or undertaking to which such
Person is a party; or
(iii) violate any Requirement of Law.
(b) Except as has been made or obtained prior to the date
hereof, no approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery, performance or enforcement against
the Guarantor or any of its Subsidiaries of the Contract or any other documents
and agreements related thereto.
(c) The Contract and the other documents and agreements
related thereto to which the Borrower, the Guarantor or any of their respective
subsidiaries is a party are in full force and effect and constitute the legal,
valid and binding obligations of the Borrower, the Guarantor, and such
Subsidiaries to the extent any such Person is a party thereto, enforceable
against such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
3.22 Full Disclosure. None of the representations or
warranties made by the Company, the Guarantor, or any of their respective
Subsidiaries in the L/C Related Documents as of the date of such
representations and warranties, and none of the statements contained in each
exhibit, report, statement or certificate furnished by or on behalf of the
Company, the Guarantor, or any of their respective Subsidiaries in connection
with the L/C Related Documents, contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which
they are made, not misleading.
4. Affirmative Covenants.
The Guarantor covenants and agrees that, so long as any Bank shall
have any Commitment under the Reimbursement Agreement, or the Letter of Credit
is outstanding or other amounts due under the Reimbursement Agreement shall
remain unpaid, unless the Majority Banks waive compliance in writing:
4.1 Financial Statements. The Guarantor shall deliver or cause
to be delivered to the Agent in form and detail satisfactory to the Banks, with
copies for each Bank:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year of the Guarantor, a copy of the audited
consolidated balance sheet of the Guarantor and its
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consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income, stockholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous year, and accompanied by the opinion of an independent certified
public accountant who shall be satisfactory to the Banks, together with a
report which shall state that such consolidated financial statements present
fairly the financial position of the Guarantor and its Subsidiaries for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years;
(b) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters of each year a copy of
the unaudited consolidated balance sheet of the Guarantor and its consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, stockholders' equity and cash flow for the period
commencing on the first day and ending on the last day of such quarter, and
certified by an appropriate Responsible Officer of the Guarantor as being
complete and correct and fairly presenting, in accordance with GAAP, the
financial position and the results of operations of the Guarantor and its
Subsidiaries;
(c) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters of each year and 90
days after the end of each fiscal year the unaudited consolidating balance
sheets of the Guarantor and each of its Subsidiaries (including, without
limitation, the Company), and the related consolidating statements of income,
stockholders' equity and cash flow for such quarter or year, all certified by
an appropriate Responsible Officer of the Guarantor as having been used in
connection with the preparation of the financial statements referred to in
paragraphs (a) and (b) of this Section 4.1;
(d) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters and 90 days after the
end of each fiscal year, a Compliance Certificate of the Guarantor for such
quarter or year end, certified by an appropriate Responsible Officer as being
complete and correct.
4.2 Certificates; Other Information. The Guarantor shall
furnish or cause to be furnished to the Agent with sufficient copies for each
Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 4.1(a) above, a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as specified
in such certificate;
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(b) promptly after the same are sent, copies of all
financial statements and reports which the Guarantor sends to its stockholders,
and promptly after the same are filed, copies of all financial statements and
regular, periodical or special reports which the Guarantor may make to, or file
with, the Securities and Exchange Commission or any successor or similar
Governmental Authority; and
(c) promptly, such additional financial and other
information as the Agent, at the request of any Bank may from time to time
reasonably request.
4.3 Notices. The Guarantor shall promptly notify or cause to be
notified the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default
and of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(b) of any (i) breach or non-performance of, or any
default under any Contractual Obligation of the Guarantor or any of its
Subsidiaries which could result in a Material Adverse Effect; or (ii)
dispute, litigation, investigation, proceeding or suspension which may exist at
any time between the Guarantor or any of its Subsidiaries and any Governmental
Authority which could result in a Material Adverse Effect;
(c) of the commencement of, or any material development
in, any litigation or proceeding affecting the Guarantor or any or its
Subsidiaries (i) in which the amount of damages claimed is $20,000,000 (or its
equivalent in another currency or currencies) or more, (ii) in which injunctive
or similar relief is sought and which, if adversely determined, could have a
Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any L/C Related Document
or the operations of the Guarantor or any of its Subsidiaries;
(d) upon, but in no event later than ten days after,
becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Guarantor or any or its Subsidiaries or any of their properties pursuant to
any applicable Environmental Laws, (ii) all other Environmental Claims, and
(iii) any environmental or similar condition on any real property adjoining or
in the vicinity of the property of the Guarantor or any of its Subsidiaries
that could reasonably be anticipated to cause such property or any part thereof
to be subject to any restrictions on the ownership, occupancy, transferability
or use of such property under any Environmental Laws, if the aggregate cost or
value of such actions,
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Environmental Claims, or other conditions is reasonably anticipated to be in
excess of $10,000,000 in the aggregate;
(e) of any other litigation or proceeding affecting the
Guarantor or any of its Subsidiaries which the Guarantor would be required to
report to the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, within four days after reporting the same to the
Securities and Exchange Commission;
(f) any ERISA Event affecting the Guarantor or any member
of its Controlled Group (but in no event more than ten days after such ERISA
Event) together with (i) a copy of any notice with respect to such ERISA Event
that may be required to be filed with the PBGC and (ii) any notice delivered by
the PBGC to the Guarantor or any member or its Controlled Group with respect
to such ERISA Event;
(g) upon becoming aware of any Material Adverse Effect
subsequent to the date of the most recent audited financial statements of the
Guarantor delivered to the Banks pursuant to subsection 4.1(a), notice thereof;
(h) following any change in accounting policies or
financial reporting practices of the Guarantor, notice thereof; and
(i) upon becoming aware thereof, notice of any labor
controversy resulting in or threatening to result in any strike, work stoppage,
boycott, shutdown or other labor disruption against or involving the Guarantor
or any of its Subsidiaries, if such labor controversy is reasonably likely to
have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of the Borrower or the Guarantor, as
appropriate, setting forth details of the occurrence referred to therein and
stating what action the Borrower or the Guarantor, as appropriate, proposes to
take with respect thereto.
4.4 Preservation of Corporate Existence, Etc. Except as permitted
by the provisions of Section 5.2, the Guarantor shall and shall cause each of
its Subsidiaries to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its State or
jurisdiction of incorporation;
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(b) preserve and maintain in full force and effect all
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business;
(c) use its reasonable efforts, in the ordinary course
and consistent with past practice, to preserve its business organization and
preserve the goodwill and business of the customers, suppliers and others
having business relations with it; and
(d) preserve or renew all of its registered trademarks,
trade names and service marks, the non-preservation of which could have a
Material Adverse Effect.
4.5 Maintenance of Property. The Guarantor shall maintain, and
shall cause each of its Subsidiaries to maintain, and preserve all its property
which is used or useful in its business in good working order and condition,
ordinary wear and tear excepted and make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so would not
have a Material Adverse Effect, except as permitted by Section 5.2. The
Guarantor shall use, and shall cause each of its Subsidiaries to use, the
standard of care typical in the industry in the operation of its facilities.
4.6 Insurance. The Guarantor shall maintain, and shall cause each
of its Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons, including workers' compensation
insurance, public liability and property and casualty insurance which amount
shall not be reduced by the Guarantor or any of its Subsidiaries in the absence
of thirty days' prior notice to the Agent. Upon request of the Agent, the
Guarantor shall furnish or cause to be furnished to the Agent, with copies for
each Bank, at reasonable intervals (but not more than once per calendar year) a
certificate of a Responsible Officer of the Borrower or the Guarantor (and, if
requested by the Agent, any insurance broker of the Borrower or the Guarantor)
setting forth the nature and extent of all insurance maintained by the
Guarantor and its Subsidiaries in accordance with this Section 4.6 (and which,
in the case of a certificate of a broker, were placed through such broker).
4.7 Payment of Obligations. The Guarantor shall, and shall cause
each of its Subsidiaries to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
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(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and adequate reserves
in accordance with GAAP are being maintained by the Guarantor or such
Subsidiary;
(b) all lawful claims which, if unpaid, might by law
become a Lien upon its property; and
(c) all Indebtedness as and when due and payable but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
4.8 Compliance with Laws. The Guarantor shall comply, and shall
cause each of its Subsidiaries to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it
or its business (including the Federal Fair Labor Standards Act), except such
as may be contested in good faith or as to which a bona fide dispute may exist.
4.9 Inspection of Property and Books and Records. The Guarantor
shall maintain and shall cause each of its Subsidiaries to maintain, proper
books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Guarantor and
such Subsidiaries. The Guarantor will permit, and will cause each of its
subsidiaries to permit, representatives of the Agent or any Bank to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, employees and independent public
accountants, all at the expense of the Guarantor and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Guarantor; provided, however, when an Event of
Default exists the Agent or any Bank may visit and inspect at the expense of
the Guarantor such properties at any time during business hours and without
advance notice.
4.10 Environmental Laws.
(a) The Guarantor shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws.
(b) Upon written request of the Agent or any Bank, the
Guarantor shall submit and cause each of its Subsidiaries to submit, to the
Agent and such Bank, at the Guarantor's sole cost
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and expense at reasonable intervals, a report providing an update of the status
of any environmental, health or safety compliance, hazard or liability issue
identified in any notice or report required pursuant to Section 4.3 and any
other environmental, health or safety compliance obligation, remedial
obligation or liability, that could, individually or in the aggregate, result
in liability in excess of $10,000,000.
4.11 Solvency. The Guarantor shall continue to be, and cause each
of its Subsidiaries to be, Solvent.
4.12 Further Assurances. The Guarantor shall ensure that all
written information, exhibits and reports furnished to the Banks do not and
will not contain any untrue statement of a material fact and do not and will
not omit to state any material fact or any fact necessary to make the
statements contained therein not misleading in light of the circumstances in
which made, and will promptly disclose to the Banks and correct any defect or
error that may be discovered therein or in any L/C Related Document or in the
execution, acknowledgement or recordation thereof.
5. Negative Covenants.
The Guarantor hereby covenants and agrees that, so long as any Bank
shall have any Commitment under the Reimbursement Agreement, or the Letter of
Credit is outstanding or any amount payable under the Reimbursement Agreement
shall remain unpaid, unless the Majority Banks waive compliance in writing:
5.1 Limitation on Liens. The Guarantor shall not, nor shall it
permit any of its Subsidiaries, directly or indirectly, to make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its or
their Property, whether now owned or hereafter acquired, other than Permitted
Liens.
5.2 Mergers, Consolidations, Purchases and Sales. The Guarantor
shall not and shall not permit any of its Subsidiaries to:
(a) be a party to any merger or consolidation;
(b) transfer, convey, lease or otherwise dispose of all
or any of the assets of the Guarantor and its Subsidiaries taken as a
whole, or sell, transfer, convey, lease or otherwise dispose of any
stock, ownership interest or other equity interest in any Subsidiary
of the Guarantor, with value in the aggregate for all such sales,
transfers, conveyances, leases or other disposals per fiscal year of
the Guarantor and its Subsidiaries in excess of the Sale Limit; or
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(c) sell or assign, with or without recourse, any
accounts receivable or chattel paper, in excess for the aggregate face
amount of all accounts receivable or chattel paper sold and
outstanding at any one time of $100,000,000, excluding the sales of
chattel paper on June 26, 1992, pursuant to an agreement with
Burlington Northern Railroad Company, aggregating not more than
$27,200,000, as such sales are more particularly described on Exhibit
7.02 of the Reimbursement Agreement.
Notwithstanding the foregoing:
(x) any wholly-owned Subsidiary of the Guarantor may
merge into the Guarantor or into or with any other wholly-owned
Subsidiary of the Guarantor;
(y) any wholly-owned Subsidiary of the Guarantor may
consolidate with any other wholly-owned Subsidiary of the Guarantor so
long as immediately thereafter 100% of the voting stock or other
ownership interest of the resulting Person is owned by the Guarantor
or another wholly-owned Subsidiary of the Guarantor; and
(z) any wholly-owned Subsidiary of the Guarantor may
sell, transfer, convey, lease or assign all or a substantial part of
its assets to the Guarantor or to a wholly-owned Subsidiary of the
Guarantor;
provided, however, in each of the cases described in the preceding clauses
(x), (y) , and (z) , that (A) immediately thereafter and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing,
and (B) prior thereto, in any such case involving the Company where the Company
is not the surviving entity, such surviving entity shall assume the obligations
of the Company under this Agreement and the other L/C Related Documents
pursuant to an agreement or document in form and substance satisfactory to the
Agent and the Banks, and the Guarantor shall reaffirm its obligations under
this Guaranty pursuant to an agreement or document in form and substance
satisfactory to the Majority Banks.
The term "value" means, with respect to any asset, stock or other ownership or
equity interest disposed of, the greater of such item's book or fair market
value (or the fair market value, if book value is not applicable) as of the
date of disposition, with "book value" being the value of such item as would
appear immediately prior to such disposition on a balance sheet of the owner of
such item prepared in accordance with GAAP.
21
<PAGE> 118
5.3 Transactions with Affiliates. The Guarantor shall not and
shall not permit any of its Subsidiaries to enter into any transaction with any
Affiliate of the Guarantor except as contemplated by this Guaranty or the
Reimbursement Agreement or in the ordinary course of business and pursuant to
the reasonable requirements of the business of the Guarantor or such Subsidiary
and upon fair and reasonable terms no less favorable to the Guarantor or such
Subsidiary than would obtain in a comparable arm's-length transaction with a
Person not an Affiliate of the Guarantor.
5.4 Compliance with ERISA. Except to the extent that such would
not result, in the aggregate for all Plans, in a Material Adverse Effect, the
Guarantor shall not directly or indirectly and shall not permit or suffer any
ERISA Affiliate directly or indirectly (i) to terminate, any Plan subject to
Title IV of ERISA so as to result in any material (in the opinion of the
Majority Banks) liability to the Guarantor or any ERISA Affiliate, (ii) to
permit to exist any ERISA Event or any other event or condition, which presents
the risk of a material (in the opinion of the Majority Banks) liability of
the Guarantor or any ERISA Affiliate, or (iii) to make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from any Multiemployer
Plan so as to result in any material (in the opinion of the Majority Banks)
liability to the Guarantor or any ERISA Affiliate, (iv) to enter into any new
Plan or modify any existing Plan so as to increase its obligations thereunder
except in the ordinary course of business consistent with past practice which
could result in any material (in the opinion of the Majority Banks) liability
to the Guarantor or any ERISA Affiliate, or (v) permit the present value of all
nonforfeitable accrued benefits under each Plan (using the actuarial
assumptions utilized by the PBGC upon termination of a Plan) materially (in the
opinion of the Majority Banks) to exceed the fair market value of Plan assets
allocable to such benefits, all determined as of the most recent valuation date
for each such Plan.
5.5 Change in Business. The Guarantor shall not, and shall not
permit any of its Subsidiaries to, engage in any material line of business
substantially different from those lines of business carried on by it on the
date hereof.
5.6 Change in Structure. Except as permitted under Section 5.2,
the Guarantor shall not and shall not permit any of its subsidiaries to, make
any changes in its capital structure (including, without limitation, in the
terms of its outstanding stock) or amend its certificate of incorporation or
by-laws if, as a result, there would be a reasonable likelihood of having a
Material Adverse Change.
22
<PAGE> 119
5.7 Accounting Changes. The Guarantor shall not, and shall not
permit any of its Subsidiaries to, make any significant change in accounting
treatment and reporting practices, except as required by GAAP, or change the
fiscal year of the Guarantor or any of its Subsidiaries, except, in the case of
a Subsidiary of the Guarantor which become a Subsidiary of the Guarantor after
the date hereof, for a change in the fiscal year of such Subsidiary to make
such Subsidiary's fiscal year the same as that of the Guarantor.
5.8 Other Contracts. The Guarantor shall not, and shall not
permit any of its subsidiaries to, enter into any employment contracts or other
arrangements whose terms, including salaries, benefits and other compensation,
are not normal and customary in the industry.
5.9 Current Ratio. The Guarantor shall not permit its
consolidated ratio of (i) Consolidated Current Assets to (ii) Consolidated
Current Liabilities, to be less than 1.15 to 1.0 at any time.
5.10 Consolidated Tangible Net Worth. The Guarantor shall not
permit its Consolidated Tangible Net Worth at any time to be less than (x)
$300,000,000 plus (y) 40% of consolidated net income earned in those fiscal
quarters for which consolidated net income is positive, and which end after
January 1, 1992, and at or prior to such time.
5.11 Indebtedness to Tangible Net Worth Ratio. The Guarantor shall
not permit its ratio of consolidated Indebtedness (excluding the Guarantor's
obligations under the Guaranty and the obligations of the Guarantor and its
Subsidiaries under undrawn standby letters of credit) to Consolidated Tangible
Net Worth to be at any time greater than 1.50 to 1.O.
5.12 Funded Debt to Tangible Net Worth Ratio. The Guarantor shall
not permit its ratio of total Consolidated Funded Debt to Consolidated Tangible
Net Worth to be at any time greater than 1.20 to 1.0.
5.13 Interest Coveracge Ratio. The Guarantor shall not permit its
ratio of (a) the sum of Consolidated Operating Income, Consolidated Interest
Expense, and consolidated provision for income taxes, in each case of the
Guarantor and its Subsidiaries on a consolidated basis, to (b) Consolidated
Interest Expense, for any period of four (4) consecutive fiscal quarters to be
less than 1.5 to 1.0.
23
<PAGE> 120
6. Miscellaneous
6.1 Participations; Novations. Any Bank may from time to time,
without notice to the Guarantor and without affecting the Guarantor's
obligations hereunder, transfer its interest in the obligations to Participants
and Assignees (each defined in the Reimbursement Agreement) as provided in the
Reimbursement Agreement. The Guarantor agrees that each such transfer will
give rise to a direct obligation of the Guarantor to each such Participant and
Assignee and that each such Participant and Assignee shall have the same rights
and benefits under this Guaranty as it would have if it were a Bank party to
the Reimbursement Agreement and this Guaranty. The Guarantor authorizes the
Agent and each Bank to disclose to any prospective Participant and Assignee and
any Participant and Assignee any and all confidential information in the
Agent's and such Bank's possession concerning the Guarantor, this Guaranty and
any security for this Guaranty.
6.2 Waivers; Writing Required. No delay or omission by the Agent,
the Banks, or any Bank to exercise any right under this Guaranty shall impair
any such right, nor shall it be construed to be a waiver thereof. No waiver of
any single breach or default under this Guaranty shall be deemed a waiver of
any other breach or default. Any amendment or waiver of any provision of this
Guaranty must be in writing to be effective.
6.3 Remedies. All rights and remedies provided in this Guaranty
and any instrument or agreement referred to herein are cumulative and are not
exclusive of any rights or remedies otherwise provided by law. Any single or
partial exercise of any right or remedy shall not preclude the further exercise
thereof or the exercise of any other right or remedy.
6.4 Costs and Expenses. The Guarantor agrees to pay to the Agent
and each Bank on demand all costs, expenses and attorneys' fees (including
allocated costs for in-house legal services) incurred by the Agent and each
such Bank in connection with the enforcement of this Guaranty.
6.5 Section Headings. Section headings are for reference only,
and shall not affect the interpretation or meaning of any provision of this
Guaranty. Unless otherwise provided, references to Articles, Sections and
Exhibits shall be deemed references to Articles, Sections and Exhibits of this
Guaranty.
6.6 Severability. The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement referred to herein
shall not in any way affect or impair the
24
<PAGE> 121
legality or enforceability of the remaining provisions of this Guaranty or any
instrument or agreement referred to herein.
6.7 Governing Law. This Guaranty shall be governed by and
construed under the laws of the State of California.
6.8 Entire Agreement. This Guaranty and any instrument, agreement
or document attached hereto or referred to herein (a) integrate all the terms
and conditions mentioned herein or incidental hereto, (b) supersede all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) are intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties. In the event of any conflict between
the terms, conditions and provisions of this Guaranty and any such instrument,
agreement or document, the terms, conditions and provisions of this Guaranty
shall prevail.
[This Guaranty continues on the following page.]
25
<PAGE> 122
In Witness Whereof, the parties hereto have executed this Guaranty by
their duly authorized officers as of the day and year first above written.
Morrison Knudsen Corporation,
a Delaware corporation
By ____________________________
Title: Assistant Treasurer
By ____________________________
Title: Senior Vice President and Chief Financial Officer
Address:
720 Park Boulevard
Boise, Idaho 83729
Attention: _____________________
Bank of America National Trust
and Savings Association,
as Agent
By _____________________________
Title: Senior Agency Officer
By _____________________________
Title __________________________
Address:
315 Montgomery Street, 15th Floor
San Francisco, California 94104
Attention: _____________________
26
<PAGE> 123
EXHIBIT 4.01(e)(1)
Form of Opinion of Internal Counsel
to the Compamy and the Guarantor
[ Date ]
Bank of America National Trust and
Savings Association
315 Montgomery Street, 15th Floor
San Francisco, California 94104
Dear Sirs:
We have acted as counsel for Morrison Knudsen Corporation, an Ohio
corporation (the "Company"), and Morrison Knudsen Corporation, a Delaware
corporation (the "Guarantor"), in connection with the execution and delivery of
the Standby Letter of Credit and Reimbursement Agreement, dated as of ________
________, 1992 (the "Agreement"), between the Company, the several financial
institutions party thereto (collectively, the "Banks"), and Bank of America
National Trust and Savings Association, as agent for the Banks (the "Agent").
This opinion is provided to the Bank as required pursuant to Section
4.01 of the Agreement. Capitalized terms not otherwise defined herein have
the respective meanings set forth in the Agreement.
We have examined executed copies of the Agreement, the Guaranty, the
Letter of Credit, and the various other L/C Related Documents, certificates of
public officials from the States of Ohio and Delaware, the certificates of
incorporation and by-laws of the Company and the Guarantor, in each case, as
amended to date; records of proceedings of the Boards of Directors of the
Company and the Guarantor during or by which resolutions were adopted relating
to matters covered by this opinion, and certificates of officers of the
Company as to certain factual matters. In addition, we have made such other
investigations as we have deemed necessary to enable us to express the opinions
hereinafter set forth. We have assumed the genuineness of all signatures of
persons signing the Agreement and the Guaranty on behalf of parties thereto
other than the Company and the Guarantor, the authenticity of all documents
submitted to us as originals and the conformity to authentic original documents
of all documents submitted to us as certified, conformed or photostatic copies.
We have further assumed (i) the due organization, valid existence, and good
standing under its jurisdiction of organization of each party to the L/C
Related Documents (other than the Company or the Guarantor), and the
enforceability of each L/C Related Document
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<PAGE> 124
against each party thereto (other than the Company or the Guarantor), and (iii)
the power and authority of each party to an L/C Related Document (other than
the Company or the Guarantor) to enter into and perform its respective
obligations under each L/C Related Document to which it is a party.
As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon representations of
officers and other representatives of the Company and the Guarantor and others,
and we believe such reliance is justified.
Attorneys in this office are members of the Bars of the States of
California and Idaho, and we do not express any opinion herein concerning any
other law, other than the federal law of the United States the corporation law
of the State of Ohio as it relates to the opinions set forth below, and the
Delaware General Corporation Law.
Based upon the foregoing, and further subject to the last two
paragraphs of this letter, we hereby advise you that in our opinion:
1. (a) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Ohio.
(b) The Guarantor has been duly incorporated and is
validly existing and in good standing as a corporation under the laws
of the State of Delaware.
(c) Each Subsidiary of the Guarantor is duly organized
and existing under the laws of the jurisdiction of its formation.
2. (a) The Company has the corporate power and authority to own
its assets, to conduct the business in which it is currently engaged,
and to execute, deliver, and perform the Agreement and to execute the
other L/C Related Documents to which it is a party.
(b) The Guarantor has the corporate power and authority
to own its assets, to conduct the business in which it is currently
engaged and to execute, deliver, and perform under, the Guaranty and
to execute other L/C Related Documents to which it is a party.
3. (a) Each of the Company and the Guarantor is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease, or operation of property or
the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified would not, in the
aggregate, have a Material Adverse Effect.
- 2 -
<PAGE> 125
(b) Each Subsidiary of the Guarantor is duly qualified as
a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease, or operation of property or
the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified would not, in the aggregate
over all Subsidiaries of the Guarantor, have a Material Adverse
Effect.
4. (a) The Agreement and the Letter of Credit have been duly
authorized by the Company and no further corporate action is required
in connection therewith. The execution and delivery of the Agreement
and the due performance of the provisions therein do not and will not
violate, contravene, or constitute a default under its certificate of
incorporation, by-laws or any agreement, indenture, or other document
or instrument or Contractual Obligation to which the Company is a
party or by the terms by which the Company or any of its property is
bound or affected, or result in or require the creation or imposition
of any Lien on any of the respective properties or revenues of the
Company or the Guarantor or any Subsidiary of the Guarantor pursuant
to any Contractual obligation.
(b) The Guaranty has been duly authorized by the
Guarantor and no further corporate action is required in connection
therewith. The execution and delivery of the Guaranty and the due
performance of the provisions therein do not and will not violate,
contravene, or constitute a default under its certificate of
incorporation, by-laws or any agreement, indenture, or other document
or instrument or Contractual Obligation to which the Guarantor is a
party or by the terms by which the Guarantor or any of its property
is bound or affected, or result in or require the creation or
imposition of any Lien on any of the respective properties or
revenues of the Company or the Guarantor or any subsidiary of the
Guarantor pursuant to any Contractual Obligation.
5. (a) Except as set forth on Schedule 5.05 of of the
Agreement, no litigation, investigation, or proceedings of or before
any court, arbitrator, or other Governmental Authority is pending or,
to the best of our knowledge, threatened, against the Company, the
Guarantor, or any subsidiary of the Guarantor or any of their
respective properties or revenues, which, if determined adversely to
the Company, the Guarantor, or any Subsidiary of the Guarantor, could
reasonably be expected to have a Material Adverse Effect.
(b) Except as set forth on Schedule 5.12 of the
Agreement, no litigation, investigation, claims, disputes, or other
proceedings are pending or, to the best of our knowledge, threatened,
against the Company, the Guarantor, or any Subsidiary of the Guarantor
or their respective property, alleging violation of any Environmental
Law, which litigation, claims, disputes, or proceedings are reasonably
expected to
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<PAGE> 126
result in liabilities in excess of $10,000,000 in the aggregate.
(c) No litigation or other proceedings of or before any
court, arbitrator, or other Governmental Authority is pending or, to
the best of our knowledge, threatened against the Company, the
Guarantor, or any Subsidiary of the Guarantor, which purports to
affect or pertain to the Contract.
6. Neither the Company, the Guarantor, nor any Subsidiary of the
Guarantor is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act
of 1940, as amended.
7. Regulation U of the Board of Governors of the Federal Reserve
System does not apply to the Company's procurement of the issuance of
the Letter of Credit for the account of the Company, any extension of
credit under the Agreement, or any of the obligations of the Company
or the Guarantor under the Agreement or the Guaranty.
8. Except as set forth on Schedule 5.12 of the Agreement, the
Company, the Guarantor, and each Subsidiary of the Guarantor are in
compliance with all Environmental Laws, except such non-compliance
which would not result in liability in excess of $10,000,000 in the
aggregate.
9. To the best of our knowledge, no event has occurred or would
result from the incurring of the obligations by the Company under the
Agreement or by the Guarantor under the Guaranty which is, or with the
lapse of time or notice or both would become, an Event of Default.
10. The Guarantor has no Subsidiaries other than those listed on
Schedule 5.18(a) of the Agreement.
This letter has been furnished to you pursuant to Article IV of the
Agreement for your use in connection with the Agreement, and except for
reliance upon by the Agent, the Banks, and Participants and Assignees, may not
be relied upon for any other purpose or by any other party without our consent.
Very truly yours,
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<PAGE> 127
Exhibit 4.10(e)(2)
[Date]
To the Parties Listed on
the Attached Schedule A
Re: Standby Letter of Credit
Dear Sirs:
We have acted as special California counsel to Morrison Knudsen
Corporation, an Ohio corporation (the "Company"), and Morrison Knudsen
Corporation, a Delaware corporation (the "Guarantor"), in connection
with the transactions contemplated by the Standby Letter of Credit and
Reimbursement Agreement, dated as of _________________ ____, 1992 (the
"Agreement"), among the Company, the several financial institutions
party thereto (collectively, the "Banks"), and Bank of America
National Trust and Savings Association, as agent for the Banks (the
"Agent"). This opinion is provided to the Agent as required pursuant
to Section 4.01(e) of the Agreement. Capitalized terms not otherwise
defined herein have the respective meanings set forth in the
Agreement.
For the purposes of this opinion, we have examined original
counterparts, or copies certified or otherwise identified to our
satisfaction, of the Agreement, the Guaranty, the Letter of Credit,
the Assignment and Acceptance in the form of Exhibit 10.08 to the
Agreement and the pledge and security agreement in the form of Exhibit
2.07 to the Agreement (collectively, the "Loan Documents"). We have
also examined and relied upon the originals, or copies certified or
otherwise identified to our satisfaction, of certificates of public
officials from the States of Ohio and Delaware, the certificates of
incorporation and by-laws of the Company and the Guarantor, in each
case, as amended to date; records of proceedings of the Boards of
Directors of the Company and the Guarantor during or by which
resolutions were adopted relating to matters covered by this opinion,
and certificates of officers of the Company as to certain factual
matters. In addition, we have examined such other documents,
records, and matters of law and made such other investigations as we
<PAGE> 128
To the Parties Listed on
the Attached Schedule A
Re: Standby Letter of Credit
August 3, 1992
Page 2
have deemed necessary for the purposes of the opinion
hereinafter set forth.
For the purposes of this opinion, we have assumed (a) that
(except as to the Company and the Guarantor) all of the documents
referred to in this opinion have been duly authorized, executed and
delivered by, and that lawful consideration has been provided by all
of the parties to such documents, (b) that all of the signatures and
acknowledgements by or on behalf of all of the parties so such
documents are genuine, (c) that (except as to the Company and the
Guarantor) all signatories to such documents have been authorized, (d)
that all such parties are duly organized and validly existing and have
the power and authority to execute, deliver and perform such
documents, (e) that all of the documents submitted to us as executed
counterparts are authentic and (f) that all of the documents submitted
to us as copies conform to the executed counterparts of such
documents. As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon representations
of officers and other representatives of the Company and the Guarantor
and others and we believe it is reasonable to rely upon such
representations.
We have further assumed, without independent investigation or
inquiry, that each Bank is a bank organized or incorporated under, or
a foreign bank licensed to conduct a banking business through an
agency or branch located in the United States of America pursuant to,
the laws of the United States of America or any state of the United
States of America within the meaning of Section 1 of Article XV of the
California Constitution and Section 1716 of the California Financial
Code, and we express no opinion as to whether or not any Bank falls
within such meanings.
Based upon the foregoing, and further subject to the
assumptions, qualifications, explanations and limitations set forth
herein, we are of the opinion that:
1. (a) Each of the Agreement and the other Loan Documents to which
the Company is a party constitutes,
<PAGE> 129
To the Parties Listed on
the Attached Schedule A
Re: Standby Letter of Credit
August 3, 1992
Page 3
or when delivered will constitute, the valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms.
(b) Each of the Guaranty and the other Loan Documents to
which the Guarantor is a party constitutes, or when delivered will
constitute, the valid and binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with their terms.
2. No consent, approval, authorization, registration, or filing
with any Governmental Authority is required on the part of the Company
or the Guarantor in connection with the execution, delivery or
performance of the Agreement, the Guaranty, or the other Loan
Documents, except as may have been obtained and certified copies of
which have been delivered to by the Guarantor and the Company to the
Agent.
3. The execution, delivery, and performance by the Company and
the Guarantor of the Agreement, the Guaranty, and the other Loan
Documents to which the Company or the Guarantor is a party will not
violate, contravene, or result in a breach of any Requirement of Law
applicable to the Company or the Guarantor, or result in or require
the creation or imposition of any Lien on any of its respective
properties or revenues of the Company or the Guarantor or any
Subsidiary of the Guarantor pursuant to such Requirement of Law,
except for such violations, contraventions, breaches or Liens as would
not, in the aggregate, have a Material Adverse Effect.
The foregoing opinions are subject to the following assumptions,
qualifications, explanations and limitations:
(a) The enforceability of the obligations of the Company
and the Guarantor under, and the rights and remedies provided for in,
the Loan Documents may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
<PAGE> 130
To the Parties Listed on
the Attached Schedule A
Re: Standby Letter of Credit
August 3, 1992
Page 4
creditors' rights generally and are subject to general principles of
equity (whether considered in a proceeding in law or at equity),
including without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy
and (ii) concepts of materiality, reasonableness, good faith and fair
dealing.
(b) The enforceability of certain provisions of the Loan
Documents may be limited by California laws rendering unenforceable
(i) the release of a party from, or the indemnification of a party
against liability for its own wrongful or negligent acts under certain
circumstances or (ii) indemnification contrary to public policy.
(c) The enforceability of certain provisions of the Loan
Documents may be limited under certain circumstances to the extent
that such provisions purport to impose invalid liquidated damages,
penalties, forfeiture or late payment charges or a higher rate of
interest as a result of delinquency in payment or the occurrence of a
default.
(d) The enforceability of certain provisions of the Loan
Documents to the effect that the terms thereof may not be waived or
modified except in writing, may be limited to the extent that a
performed oral agreement has been created modifying any such document
or that an implied agreement by trade practice or course of dealing
has been created allowing a waiver.
(e) The enforceability of certain provisions of the Loan
Documents may be limited by provisions or judicial interpretations of
California law relating to the enforcement of the rights of a secured
creditor, which modify or affect the remedial provisions provided for,
or which invalidate waivers (including, without limitation, any waiver
of the protection of applicable statutes of limitation) set forth in,
the Loan Documents, including limitations on the ability of a
<PAGE> 131
To the Parties Listed on
the Attached Schedule A
Re: Standby Letter of Credit
August 3, 1992
Page 5
lender to exercise various self-help or summary remedies without
notice or opportunity for hearing.
(f) We also advise you of California statutory provisions
and case law to the effect that, in certain circumstances, a surety
may be exonerated if the creditor materially alters the original
obligation of the principal without the consent of the guarantor,
elects remedies for default that impair the subrogation rights of the
guarantor against the principal, or otherwise takes any action without
notifying the guarantor that materially prejudices the guarantor.
All statements in this opinion which are limited to our current
actual knowledge are based solely upon (i) our examination described
in this opinion, (ii) inquiry of the attorneys in our Los Angeles,
California offices who have performed services for the Company and the
Guarantor in connection with the transactions contemplated by the Loan
Documents and (iii) inquiry of officers of the Company and the
Guarantor.
We are members of the Bar of the State of California, and we do
not express any opinion herein concerning the laws of any other
jurisdiction except the Federal law of the United States, the
corporation law of the State of Ohio, and the Delaware General
Corporation Law.
This letter has been furnished to you by us as counsel to the
Borrower and the Guarantor pursuant to Section 4.01(e) of the
Agreement for your use in connection with the Agreement, and except
for reliance upon by the Banks, and Participants and Assignees, may
not be relied upon for any other purpose or by any other party without
our prior consent in each instance.
Very truly yours,
<PAGE> 132
SCHEDULE A
Bank of America
ABN - AMRO Bank
Bank of Montreal
Bank of Nova Scotia
Bank of Tokyo
Banque Indosuez
Banque Paribas
Banque Nationale De Paris
CIBC Inc.
Credit Lyonnais
Long-Term Credit Bank of Japan Limited
National Westminster Bank PLC
Royal Bank of Canada
San Paolo Bank
Union Bank of Switzerland
Westdeutsche Landesbank Gironzentrale
<PAGE> 133
EXHIBIT 4.01(e)(3)
(Date)
Bank of America National Trust
and Savings Association
315 Montgomery Street, 15th Floor
San Francisco, CA 94104
Re: opinion of Counsel
Dear Sirs:
We have acted as counsel for Morrison Knudsen Corporation, an Ohio
corporation (the "Company"), and Morrison Knudsen Corporation, a Delaware
corporation (the "Guarantor"), in connection with the proceedings referenced in
our opinion below.
Subject to the last two paragraphs of this letter, we hereby advise
you that in our opinion:
1. The proceedings brought by Local No. 719, United Auto Workers
and Carole J. Travis and Bombardier Corporation and Pullman Technology, Inc.
against Metra and Morrison Knudsen Corporation, which proceedings began in the
Circuit Court of Cook County, Illinois and had case numbers 92-CH-01041 and
92-CH-10142, and all related lawsuits, actions, litigation, and other
proceedings, whether at law or in equity, have been terminated by a judgment in
favor of the defendants, Metra and Morrison Knudsen Corporation, and all rights
to appeal have been extinguished. Thus, the doctrine of res judicata would
preclude any subsequent action by Local 719, Ms. Travis, Bombardier or Pullman.
We are members of the Bar of the State of Illinois and we do not
express any opinion herein concerning any law other than the law of the State
of Illinois.
This letter has been furnished to you in connection with the execution
and delivery of the Standby Letter of Credit and Reimbursement Agreement, dated
as of , 1992, (the "Agreement"), between the Company, the several
financial institutions party thereto (collectively, the "Banks"), and Bank of
America National Trust and Savings
<PAGE> 134
Bank of America NT&SA
Re: Opinion of Counsel
July 31, 1992
Page 2
Association, as agent for the Banks (the "Agent") for your use in connection
with the Agreement, and except for reliance upon by the Agent, the Banks,
Participants, and Assignees with respect to the Agreement, may not be relied
upon for any other purpose or by any other party without our consent.
Capitalized terms used herein but not otherwise defined herein have the
meanings given to them in the Agreement.
Very truly yours,
<PAGE> 135
EXHIBIT 6.01(d)
MORRISON KNUDSEN CORPORATION
COMPUTATION OF RATIOS AND OTHER FINANCIAL REQUIREMENTS
AT ________________, PURSUANT TO THE STANDBY LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
BETWEEN MORRISON KNUDSEN CORPORATION AND BANK OF AMERICA,
AS AGENT, AND CERTAIN OTHER FINANCIAL INSTITUTIONS
- ------------------------------------------------------------------------------
All data included herein is for
Morrison Knudsen Corporation (a Delaware corporation) and Subsidiaries
(Thousands of dollars)
DEFINITIONS
CONSOLIDATED CURRENT ASSETS
Current assets of Morrison Knudsen Corporation (the
"borrower") and subsidiaries,
determined on a consolidated basis and in accordance $
with generally accepted accounting principles ==========
CONSOLIDATED CURRENT LIABILITIES
Current liabilities of borrower and subsidiaries,
determined on a consolidated basis and in accordance
with generally accepted accounting principles $
==========
CONSOLIDATED NET EARNINGS
Consolidated net income (four quarter rolling average)
of borrower and subsidiaries $
==========
CONSOLIDATED TANGIBLE NET WORTH
Par value, common stock $
Consolidated surplus
Treasury stock
Intangible assets
Plus: Cumulative charges from adopting FAS 106
(not to exceed $25 Million).
Less: Cumulative charges recorded on "pay as you go"
method. __________
$
==========
CONSOLIDATED WORKING CAPITAL
Consolidated current assets $
Consolidated current liabilities __________
$
==========
1
<PAGE> 136
CONSOLIDATED OPERATING INCOME
Four Quarter Rolling Average:
Consolidated net income of borrower and subsidiaries $
Less net gain on sale or disposal of noncurrent
investments, extraordinary and nonrecurring items
Less gain in excess of $10 million on sale of fixed
assets __________
$
==========
COVENANTS
CONSOLIDATED CURRENT RATIO
Maintain a ratio of consolidated current assets to
consolidated current liabilities of not less than
1.15 to 1
Consolidated current assets $
==========
Consolidated current liabilities $
==========
Ratio
==========
TANGIBLE NET WORTH
Maintain a consolidated tangible net worth equal to
at least the sum of (a) $300 million and (b) 40% of the
cumulative consolidated net earnings since 1/1/92
Minimum level $
40% of cumulative consolidated net earnings ----------
Requirement
Consolidated tangible net worth ----------
Excess of consolidated tangible net worth over amount $
required ==========
INTEREST COVERAGE
Maintain coverage of not less than 1.5 to 1 of the
sum of consolidated operating income, interest expense
and income taxes to interest expense
Four Quarter Rolling Average:
Consolidated operating income
Interest expense
Income taxes ----------
$
==========
Number of times interest expense covered $
==========
2
<PAGE> 137
INDEBTEDNESS To TANGIBLE NET WORTH
Maintain a ratio of indebtedness to consolidated
tangible net worth of not more than 1.5 to 1
Funded debt of borrower and subsidiaries including $
zero coupon convertible notes
Financial guarantees of borrower and subsidiaries ----------
$
==========
Consolidated tangible net worth $
==========
Ratio
==========
FUNDED DEBT TO TANGIBLE NET WORTH
Maintain a ratio of funded debt to consolidated
tangible net worth of not more than 1.2 to 1
Funded debt (including current portion) of borrower and
subsidiaries including zero coupon convertible notes
$
==========
Consolidated tangible net worth $
==========
Ratio
==========
* * * * * * * * * * * * * * *
Concerning the consolidated financial condition of Morrison Knudsen Corporation
at _________, 199_, we have no knowledge of the existence of any condition,
event or act which constitutes, or which with notice or the lapse of time, or
both, would constitute an event of default as defined in the Standby Letter of
Credit and Reimbursement Agreement.
MORRISON KNUDSEN CORPORATION
Daniel J. Kunz
Vice President and Controller
3
<PAGE> 138
OUTSTANDING LETTERS OF CREDIT AS OF _______________________, 199__
<TABLE>
<CAPTION>
Dollar Expiration
Beneficiary Amount Date
----------- ------ ----
<S> <C>
TOTAL $___________
</TABLE>
4
<PAGE> 139
EXHIBIT 7.02
DESCRIPTION OF BURLINGTON NORTHERN
RECEIVABLE TRANSACTION
Morrison Knudsen Corporation, an Ohio Corporation (MKC) entered into a
Structured Remanufacturing Financing Program with Bankers Leasing and Financial
Corporation (BLFC) on June 26, 1992, pursuant to an April 29, 1992 agreement
with Burlington Northern Railroad (BN). MKC assigned the Burlington Northern
contract to BLFC and received payment in advance for work to be completed. Upon
completion of the remanufacturing process of a locomotive, BN pays to MKC and
MKC pays to BLFC the purchase price of $542,900 per locomotive. Payment is due
to BLFC six months after the delivery of each locomotive. Following is an
estimated delivery schedule of locomotives:
<TABLE>
<S> <C>
August 92 4
September 92 10
October 92 10
November 92 10
December 92 10
January 93 6
TOTAL 50
</TABLE>
<PAGE> 140
EXHIBIT 10.08
ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated ____________________________________,
199_ between _________________________________________ (the "Assignor") and
_________________________________________(the "Assignee").
PRELIMINARY STATEMENTS
A. Reference is made to the Standby Letter of Credit and
Reimbursement Agreement dated as of August 4, 1992 (as amended, modified or
supplemented from time to time, the "Reimbursement Agreement"), among Morrison
Knudsen Corporation, an Ohio corporation (the "Company"), certain financial
institutions which are party,thereto (the "Banks") and Bank of America National
Trust and Savings Association as agent for the Banks (in such capacity, the
"Agent"). Capitalized terms not otherwise defined herein but used herein have
the meanings given to them in the Reimbursement Agreement.
B. The Assignor is a Bank under and as defined in the
Reimbursement Agreement and, as such, presently has outstanding the following
credits and Commitment under the Reimbursement Agreement:
<TABLE>
<S> <C>
L/C Borrowings $______________
Commitment $______________
</TABLE>
C. On the terms and conditions set forth below, the Assignor
desires to sell and assign to the Assignee, and the Assignee desires to
purchase and assume from the Assignor, a _______%(1) interest (the "Assigned
Percentage") in and to all of the Assignor's rights and obligations as of the
Effective Date (as defined below).
D. After giving effect to such assignment, the respective credits
and Commitment of the Assignor and Assignee under the Reimbursement Agreement
will be:
____________________________
(1) Specify percentage of Assignor's interest only in total
facility to accuracy of nine decimal points.
1
<PAGE> 141
<TABLE>
<S> <C>
Assignor
L/C Borrowings $______________
Commitment $______________
Assignee
L/C Borrowings $______________
Commitment $______________
</TABLE>
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee WITHOUT
RECOURSE, and the Assignee hereby purchases and assumes from the Assignor, the
Assigned Percentage of the Assignor's rights and obligations under the
Reimbursement Agreement as of the Effective Date.
2. The Assignor:
(i) represents and warrants that as of the date hereof
its credit and Commitment (without giving effect to assignments thereof which
have not yet become effective) are as follows:
<TABLE>
<S> <C>
L/C Borrowings $______________
Commitment $______________
</TABLE>
(ii) 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; (iii) makes no representations
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Reimbursement
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Reimbursement Agreement or any other L/C Related
Document furnished pursuant thereto; and (iv) makes no representations or
warranty and assumes no responsibility with respect to the financial condition
of the Company, the Guarantor, or any of the Guarantor's Subsidiaries or the
performance or observance by the Company, the Guarantor, or any of the
Guarantor's Subsidiaries of any of their obligations under the Reimbursement
Agreement or any other L/C Related Document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is an
Eligible Assignee; (ii) confirms that it has received a copy of the
Reimbursement Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter this Assignment and Acceptance; (iii) agrees that it will,
independently and without reliance upon Agent, the Assignor or any other Bank
and based on
2
<PAGE> 142
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 Reimbursement Agreement and any other L/C Related Documents; (iv) appoints
and authorizes Agent to take such action as agent on its behalf and to exercise
such powers under the Reimbursement Agreement and the other L/C Related
Documents as are delegated to Agent by the terms thereof, together with such
powers as 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 Reimbursement Agreement and the other L/C Related Documents are
required to be performed by a Bank thereunder.
4. Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to Agent for acceptance and
recording by Agent and acceptance by the Company and Bank of America National
Trust and Savings Association as Issuing Bank ("BofA"). The effective date for
this Assignment and Acceptance shall be ______________________________________
(the "Effective Date"), subject to acceptance by the Agent, the Company and
BofA; provided, however, this Assignment and Acceptance shall not be effective
until accepted by the Agent, the Company and BofA, and until payment to the
Agent of an assignment fee of $3,500.
5. Subject to and upon such acceptance and recording as of the
Effective Date, (i) the Assignee shall be a party to the Reimbursement
Agreement and shall be entitled to the rights and benefits of the L/C Related
Documents and, to the extent of the percentage assigned in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and (ii) the
Assignor shall, to the extent of the percentage assigned in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under
the Reimbursement Agreement and the other L/C Related Documents. The Assignor
shall retain all rights applicable to it under the Reimbursement Agreement
relating to Credits extended, acts or omissions made, or other matters arising,
prior to the Effective Date.
6. Upon such acceptance and recording, from and after the
Effective Date, Agent shall make all payments under the Reimbursement Agreement
which are payable to Agent for the account of the appropriate Bank to the
appropriate Banks severally in proportion to their respective percentages
determined after giving effect to this assignment, when payment is due. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Reimbursement Agreement and the other L/C Related Documents for periods
prior to the Effective Date directly between themselves.
3
<PAGE> 143
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the law of the State of California.
[NAME OF ASSIGNOR]
By: __________________________________
Title: _______________________________
[NAME OF ASSIGNEE]
By: __________________________________
Title: _______________________________
Accepted this ___ day
of_____________________, 199__
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: __________________________________
Title: _______________________________
Accepted this ___ day
of_____________________, 199__
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, Issuing Bank
By: __________________________________
Title: _______________________________
4
<PAGE> 144
Accepted this ___ day
of_____________________, 199__
MORRISON KNUDSEN CORPORATION,
an Ohio corporation
By: __________________________________
Title: _______________________________
5
<PAGE> 145
SCHEDULE 5.05
LITIGATION
No Items
<PAGE> 146
Schedule 5.07
5.07(a)
I. EMPLOYEE BENEFIT PLANS SPONSORED OR MAINTAINED BY THE COMPANY FOR
SALARIED EMPLOYEES
A. Qualified Plans
1. Morrison Knudsen Corporation Retirement Plan
2. Morrison Knudsen Corporation 401(k) Savings Plan
3. Morrison Knudsen Corporation Employee Stock Ownership Plan
B. Nonqualified Pension Benefit Plans
Morrison Knudsen Corporation Supplemental Savings Plan
C. Nonqualified Welfare Benefit Plans
1. Morrison Knudsen Corporation Group Travel Accident Plan
2. Morrison Knudsen Corporation Comprehensive Group Life, Medical, Dental
and EAP Plan
3. Morrison Knudsen Corporation Long Term Disability Plan
4. Morrison Knudsen Corporation Personal Accident Insurance Plan
5. Morrison Knudsen Corporation Dependent Care Flexible Spending Account
Plan
6. Morrison Knudsen Corporation Health Care Flexible Spending Account Plan
7. Morrison Knudsen Corporation Severance Pay Plan
8. Morrison Knudsen Corporation Key Executive Life Insurance Plan
9. Morrison Knudsen Corporation Educational Assistance Plan
D. Multi-employer Plans
None
<PAGE> 147
II. EMPLOYEE BENEFIT PLANS SPONSORED OR MAINTAINED BY THE COMPANY FOR
HOURLY EMPLOYEES
A. Qualified Plans
1. Morrison Knudsen Corporation Money Purchase Pension Plan
2. American Girl Mining Joint Venture Money Purchase Pension Plan
B. Nonqualified Pension Benefit Plans
None
C. Nonqualified Welfare Benefit Plans
1. Morrison Knudsen Corporation Comprehensive Group Life, Medical, Dental
and EAP Plan
2. See document attached hereto and identified as "Company Sponsored
Non-Union Insurance and Pension Benefits" at 1-1-92
3. In addition to the foregoing, the Company makes contributions to
numerous welfare benefit funds that provide health insurance and other
welfare benefits for hourly employees whose terms and conditions of
employment are governed by collective bargaining agreements. Such
contributions are made in the normal course of business. The Company
does not maintain a list of such funds.
D. Multi-employer Plans
See document attached hereto and identified as "ERISA Multi-Employer
Pension Plan Funding Status and Corporate Liability Summary"
("Withdrawal Liability Summary")
The Withdrawal Liability Summary sets forth all Multi-employer plans
to which the Company, the Guarantor or any member of the Controlled
Group of which the Company or Guarantor are a part ("MK Group") has
contributed between 1985 and 1990. The MK Group may have contributed
to additional Multi-employer plans since 1990 that are not listed in
the Withdrawal Liability Summary. However, the Company and Guarantor
hereby represent and warrant that the MK Group's potential withdrawal
liability under the Multi-employer Plans to which the Company,
Guarantor, or any member of the Controlled Group may have contributed
since 1990 and which are not set forth on the Withdrawal Liability
Summary does not exceed $10,000,000 in the aggregate.
<PAGE> 148
5-18-92 COMPANY SPONSORED NON-UNION INSURANCE AND PENSION BENEFITS AT 1-1-92
DESCRIPTION RENEWAL DATE
- ----------- ------------
AETNA SELF-INSURED PLANS
- ------------------------
ATAC Plan 01/01/93
IBM Ind. Park - Tucson 01/01/93
IBM-Mechanicsburg, PA 01/01/93
Fallon Naval 01/01/93
Santa Ynez 01/01/93
C-P-C Office Services 01/01/93
Amer. Girl Mining J.V. 01/01/93
San Diego (ALL CONTRACTS) 01/01/93
Rocky Mountain Arsenal 01/01/93
Stanley Canyon - NPI 01/01/93
Hecklenburg - UCRCF 01/01/93
Power Plant Constructors 01/01/96
Rolm Systems, Santa Clara 01/01/93
Sarpy Creek (UNION) 01/01/93
Atascosa 01/01/93
Havasota 01/01/93
Copperstone 01/01/93
<PAGE> 149
5-18-92
COMPANY SPONSORED NON-UNION INSURANCE AND PENSION BENEFITS AT 1-1-92
DESCRIPTION RENEWAL DATE
- --------------------------------------------
AETNA SELF-INSURED PLANS
- --------------------------
MK Gold Company 01/01/93
(Castle Mountain)
MK-IBM San Jose, CA 01/01/93
MK-Boulder, Colorado 01/01/93
MK-Denver, Colorado 01/01/93
IBM-Gaithersburg (O&M-NPI) 01/01/96
Utah Railway Maintenance 05/01/96
IBM-Almaden (O&M-NPI) 01/01/93
BLUE CROSS/BLUE SHIELD PLANS
- ----------------------------
Mountain Top 01/01/93
Hornell (UNION) 01/01/93
<PAGE> 150
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB or DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
26014730 1 * Northern New England Carpenters Pension *
42591016 1 08-28-57 Iron Workers District Council of New England Pension Plan DB
42746381 1 * Plumbers and Pipefitters L#104 Pension Plan *
46127765 1 04-01-59 IUOE Local #98 Pension Funds DB
46128298 1 07-01-61 Massachusetts Laborers Pension Fund DB
46171944 1 06-24-59 Asbestos Workers L#43 Pension Plan DB
46372430 1 04-11-58 New England Teamsters & Trucking Industry Pension Fund DB
60733831 1 10-01-58 I.U.O.E. L#478 Pension Fund DB
60738593 1 04-01-58 Connecticut State Council of Carpenters State Wide Pension Fund DB
66044348 1 04-01-61 Connecticut Laborers Pension Fund DB
66077019 1 07-01-56 Iron Workers L#15 & 424 Pension Plan DB
66103786 1 01-01-67 The Pension Plan for the Connecticut Bricklayer's Pension Fund DB
112392157 1 07-01-75 I.U.O.E. L#14 - 14B Pension Fund DB
116245313 1 11-06-50 Teamsters L#282 Pension Trust Fund DB
131626710 1 09-01-50 Cement Masons L#780 Pension Fund DB
131825849 1 04-16-51 I.U.O.E. L#137, 137A, 137B, 137C, 137R Pension Plan DB
131962287 1 01-01-62 Westchester Heavy Construction Laboeres L#60 Pension Fund DB
131977149 1 02-06-63 I.U.O.E. Marine Division L#25 Pension Trust Fund DB
131990171 1 * Pavers and Road Builders D.C. Pension Fund *
135629824 1 08-25-54 Cement & Concrete Workers District Council Pension Fund DB
135635004 1 * Tile Layers L#52 New York Pension Fund *
136106419 1 09-01-50 Metal Lathers L#46 Pension Fund DB
136159747 1 * Laborers L#29 Pension Fund *
136694319 1 07-01-75 IUOE L#15, 15A, 15C & 15D Pension Fund DB
150614642 1 05-01-59 IUOE L#17, 106, 410, 463, 545 & 832 Joint Pension Fund DB
156019785 1 * Laborers L#322 Pension Fund *
156179079 1 * New York City Carpenters and Dockbuilders *
160823634 1 09-01-58 United Association L#129 Pension Plan DB
161117153 1 * Ironworkers L#60 & 440 Pension Plan *
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 151
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB or DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
161156475 79 04-01-79 Upstate New York State Teamsters Pension & Retirement Fund DB
161188938 1 07-01-81 Sheet Metal Workers L#58 Retirement Fund DC
166014473 1 12-00-60 Rochester Laborers Pension Fund DB
166063585 74 01-01-54 New York State Teamsters Conference Pension & Retirement Fund DB
166094914 1 * IBEW L#237 Pension Fund *
166108762 1 07-01-58 Plumbers and Steamfitters L#117 Defined Benefit Pension Fund DB
166149240 1 07-01-66 IBEW L#910 Pension Fund DB
221339912 1 * Bricklayers L#26 Pension Fund *
221624107 1 06-26-57 Tile Helpers Subordinate Union #77 Retirement Plan DC
222774395 1 * Carpenters and Joiners L#278 Pension Fund *
226025420 1 * New Jersey Carpenters Fund *
226032103 1 07-01-53 Heavy & General Laborers L#472 & 172 DB
226033380 1 11-14-55 Operating Engineers L#825 Pension Fund DB
226063702 1 09-01-52 Trucking Employees of North New Jersey Welfare Fund, Inc.-Pension Fund DB
226172237 1 * Teamsters L#469 Pension Fund *
226173635 1 07-01-64 Laborers L#779 of Sommerville, NJ, Pension Plan DB
226174170 1 09-13-57 Boilermakers Local Union #28 Pension Fund DB
231511735 1 03-01-57 Philadelphia and Vicinity Teamsters Pension Trust Fund DB
231613018 1 * Philadelphia and Vicinity Carpenters Pension Fund *
231972409 1 05-01-62 Cement Masons L#592 Pension Fund DB
236235338 1 05-01-62 Laborers District Council Construction Industry Pension Fund DB
236262789 1 01-01-55 Central Pennsylvania Teamsters Central Pension Fund DB
236405239 1 01-01-60 IUOE Pension Fund of Eastern Pennsylvania and Delaware DB
236420513 1 05-01-66 Keystone Dist. Counc. Brotherhood of Carpenters & Joiners Pension Fund DB
236426696 1 05-01-67 Inter. Brotherhood of Painter & Allied Trades, L#411 Pension Fund DB
236429849 1 05-01-66 Laborers International Union of N.A. AFL-CIO L#1167 Pension Fund DB
236445411 1 05-01-67 Plasters & Cement Masons L#94 & 480 Pension Fund DB
236489354 1 * Plumbers & Pipefitters L#520 Pension Fund *
236529504 1 10-15-53 Iron Workers District Council Philadelphia & Vicinity Pension Plan DB
236537047 1 01-01-66 IBEW L#143 Benefit Funds Pension Fund DB
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 152
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB or DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
236543634 1 10-01-65 Northern New York Bricklayers & Masons L#56 Pension Fund DB
310235930 1 06-01-68 Cement Masons L#524 Pension Plan DB
310655223 1 00-00-62 Pipefitters L#392 Pension Fund DB
316018841 1 06-01-62 Southwest Ohio District Council Of Carpenters Pension Fund DC
316093964 1 * Bricklayers L#16 Pension Fund *
316127229 1 12-01-62 Iron Workers Dist. Counc. Of So. Ohio & Vicinity Pension Trust DB
316127280 1 06-01-65 L#212 IBEW Pension Fund DB
316127282 1 11-07-69 Laborers L#265 Pension Plan DB
316128039 1 06-01-52 Plumbers & Gasfitters L#59 Pension Fund DB
316129964 1 11-01-67 Ohio Laborers Dist. Counc. & Contractors Pension Fund of Ohio DB
316129968 1 06-01-64 Ohio Operating Engineers Pension Fund DB
340902473 1 * Teamsters L#436 Pension Fund *
346574360 1 * Carpenters L#899 Pension Fund *
346601589 1 * Carpenters L#392 Pension Fund *
346665712 1 05-01-66 Building Laborers L#310 Pension Fund DB
346680806 1 05-01-62 Ohio Carpenters Pension Fund DB
356027150 1 06-01-62 Indiana State Distr. Council of Laborers & Hod Carriers Pension Fund DB
356054275 1 07-01-62 Sheet Metal Workers L#20 South Bend Area Pension Fund DB
356269273 1 06-01-72 Michigan Area Electrical Workers Pension Fund DB
366044243 1 02-01-55 Central States, Southeast & Southwest Areas Pension Fund DB
366052390 1 02-01-60 Central Pension Fund Internat. Union of Operating Engineers DB
366140097 1 04-01-63 Midwest Operating Engineers Pension Trust Plan DB
366489904 1 06-01-63 Laborers Pension Fund DB
376052379 1 06-01-65 Central Laborers Pension Fund DB
381900637 1 04-15-57 IUOE L#324 Pension Plan DB
382107928 1 * Iron Workers L#783 Pension Plan *
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 153
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB OR DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
386065579 1 06-01-62 Plumbers & Steamfitters L#190 Pension Fund DB
386233976 1 07-01-64 State of Michigan Laborers District Council Pension Fund DB
386233978 1 08-06-63 Michigan Carpenters Council Pension Fund DB
416043137 1 05-01-64 Twin Cities Carpenters and Joiners Pension Fund DB
416083775 1 01-01-67 Minnesota Laborers Pension Fund DB
416159599 1 * Minnesota Laborers L#580 Fringe Benefit Plan *
416187751 1 07-01-71 Minnesota Teamsters Construction Division Pension Fund DB
436159056 1 06-15-62 Construction Laborers Pension Trust for Southern California DB
450283736 1 07-01-75 Sheet Metal Workers L#14 Pension Plan DB
450348980 1 * Dakotas Area IBEW-NECA L#714 Pension Fund *
486168020 1 06-20-60 Boilermaker-Blacksmith National Pension Fund DB
510155190 1 11-20-59 Western States Asbestos Pension Plan DB
510161467 1 05-01-65 Iron Workers L#17 Pension Fund DB
510174276 1 11-01-56 New York City District Council of Carpenters Pension Fund DB
510219541 1 01-01-77 Plumbers & Pipefitters L#9 Pension Plan DB
516031325 1 11-30-65 Operative Plasterers & Cement Masons L#396 Pension Trust Fund DB
516040899 1 02-06-72 Massachusetts State Carpenters Pension Fund DB
516044959 1 06-01-63 Operating Engineers L#428 Pension Trust Fund DB
516049409 1 06-01-59 Building Trades United Pension Trust Fund DB
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 154
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB OR DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
516102576 1 04-05-54 Iron Workers L#40, 361 & 417 Pension Fund DB
516113676 1 * Excavators Union L#731 (Laborers) Pension Fund *
516119504 1 * Sheet Metal Workers L#63 Pension Fund *
520749131 1 05-01-57 Laborers District Council #3 Pension & Disability Trust Fund DB
526038497 1 09-10-60 National Asbestos Workers Pension Fund DB
526038506 1 11-30-61 Operating Engineers Pension Trust Fund of Washington, D.C. & Vicinity DB
526054620 1 * National Automatic Sprinkler Industry Pension Fund *
526073909 1 04-01-67 IBPAT Union National Pension Fund DB
526103810 1 06-01-68 Alaska Plumbing & Pipefitting Industry Pension Fund DB
526112463 1 * Sheet Metal Workers National Pension Fund *
526127746 1 06-29-72 Bricklayers and Trowel Trades International Pension Fund DB
526152779 1 07-23-68 Plumbers & Pipefitters National Pension Fund DB
530181657 1 05-01-47 National Electrical Contractors Assoc. Pension Benefit Trust Fund DB
546111786 1 05-31-72 Eastern District Council of Carpenters Pension Fund DB
546112218 1 01-01-70 Iron Workers L#28 Pension Plan DB
546117299 1 09-01-70 Laborers District Council of Virginia Pension Trust Fund DB
556015364 1 04-01-62 I.U.O.E. L#132 Pension Fund DB
556021850 1 01-01-57 Employer-Teamsters Joint Council #84 Pension Plan DB
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 155
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB or DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
556026775 1 04-01-65 West Virginia Laborers Pension Trust Fund Pension Plan DB
581254974 1 08-28-75 IBEW L#1579 and Eastern Division GA Chapter Pension Fund DB
581495609 1 08-31-81 Georgia Council of Carpenters Pension & Contrib Employers Annuity Fund DC
586116699 1 09-08-68 Plumbers & Steamfitters L#150 Pension Fund DB
596227091 1 01-01-68 Southern Iron Workers Pension Fund DB
620787578 1 09-01-67 Iron Workers L#167 Pension Plan DB
620857704 1 06-01-71 Cement Masons L#521 Pension Fund DB
626085904 1 04-01-68 Steamfitters L#614 Pension Fund DC
626093256 1 04-01-67 Sheet Metal Workers L#177 Pension Fund DB
626098036 1 12-19-69 Iron Workers Tennessee Valley DB
626101275 1 08-01-69 Mid. Tennessee District Council Carpenters & Millwrights Pension Fund DB
626102837 1 05-01-77 Plumbers & Pipefitters L#572 Pension Fund DB
626104660 1 04-01-68 Plumbers L#17 Pension Plan DB
626112262 1 09-01-72 Carpenters L#345 Pension Trust Fund DB
626125711 1 03-01-75 Southern Electric Retirement Fund DC
730742835 1 * Pipeline Industry Benefit Fund *
736146433 1 03-01-65 Pipeline Industry Pension Fund DB
741905198 1 02-26-54 Texas Iron Workers Pension Trust Fund DB
746054691 1 09-22-63 Pipefitters L#211 Pension Trust Fund DB
746070255 1 * Sabine Area Pipefitters L#195 Pension Fund *
746091787 1 10-01-66 Cement Masons L#681 and 177 Pension Fund DB
746108371 1 07-01-68 Carpenters District Council of Houston & Vicinity Pension Fund DB
746171532 1 * Sabine Area Carpenters Pension Trust *
746174676 1 07-01-65 IBEW L#716 Pension Trust DB
746263976 1 04-01-76 Houston Area Teamsters Pension Fund DB
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 156
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB or DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
751280827 1 05-15-68 Laborers National Pension Fund DB
756052008 1 07-01-64 Plumbers & Steamfitters L#100 Pension Plan DB
816009559 1 * Montana Operating Engineers Construction & Mining Pension Trust Fund *
826010346 1 06-01-63 Idaho Plumbers and Pipefitters Pension Fund DB
836011320 1 * Operating Engineers L#800 Trust Fund *
846041803 1 04-27-64 Colorado Pipe Industry Pension Trust & Plan DB
846052909 1 04-07-67 Centennial State Carpenters Pension Trust Fund DB
846099094 1 04-23-68 Colorado Iron Workers Pension Trust Fund DB
846100393 1 06-01-72 Eighth District Electrical Pension Fund DB
866029590 1 11-30-65 Operative Plasterers & Cement Masons L#394 Pension Trust Fund DB
866069772 1 * Arizona State Carpenters Pension Fund *
866084210 1 * Arizona Laborers Teamsters & Cement Masons Pension Fund *
866084210 2 * Arizona Laborers Teamsters & Cement Masons Pension Fund *
876124266 1 06-01-64 Intermountain Iron Workers Pension Trust DB
876127884 1 01-09-67 Utah Laborers Pension Trust Fund DB
880138600 1 06-01-68 Laborers Pension Trust Fund for Northern Nevada DB
910681009 1 * Teamsters L#307 Pension Trust *
916022315 1 06-14-61 Western Washington Laborers-Employers Pension Plan DB
916028298 1 07-01-62 Alaska Laborers-Employers Retirement Fund DB
916028571 1 01-01-57 I.U.O.E. L#302 & 612 Construction Pension Trust Fund DB
916038571 1 * Carpenters-Employers Retirement Fund *
916061344 1 * Northwest Sheet Metal Workers Pension Fund *
016062468 1 * Eastern Washington-Idaho laborers Trust Fund *
916070237 1 06-01-64 Engineers AGC Retirement Trust Fund of The Inland Empire DB
916075538 1 12-17-86 AGC-Operating Engineers Idaho Branch Trust Fund DB
916123692 1 01-01-65 Northern Alaska Carpenters Trust Fund DB
916123964 1 04-01-66 Laborers-AGC Pension Trust of Montana DB
916123988 1 06-28-75 Washington-Idaho Laborers-Employer Pension Trust Fund DB
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 157
ERISA MULTI-EMPLOYER PENSION PLAN FUNDING STATUS
AND CORPORATE LIABILITY SUMMARY
<TABLE>
<CAPTION>
EFFECTIVE PLAN
PENSION PLAN DATE TYPE
ID NO. NO OF PLAN PLAN NAME DB or DC
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
916145039 1 01-05-66 Rocky Mountain District Council of Carpenters Pension Trust Fund DB
916145041 1 11-01-66 AGC Signatory Employers - Laborers Pension Trust Fund DB
916145047 1 04-15-55 Western Conference of Teamsters Pension Trust Fund DB
920013284 1 12-28-66 Alaska Pension Fund *
926003157 1 * Carpenters-Employers Retirement Fund *
926003463 1 07-01-66 Alaska Teamster Employer Pension Trust DB
926004524 1 07-01-67 Alaska Trowel Trades Pension Trust DB
926005171 1 01-01-68 Alaska Electrical Pension Fund DB
928969709 1 * Key Trust Company of Alaska *
936021112 1 * Oregon Washington Carpenters Employees Pension Trust *
936073070 1 01-01-62 Cement Masons-Employers Pension Trust Fund DB
936073142 1 * Northwest Bricklayers Pension Fund *
936075363 1 01-01-59 Oregon laborers Employers Pension Trust Fund DB
936075580 1 03-31-60 Board of Trustees - AGC Inter. Union of Operating Engineers L#701 DB
946082956 1 07-01-54 Pipe Trades District Council #36 Pension Trust DB
946090764 1 12-30-59 Operating Engineers Pension Trust Fund DB
946276535 1 08-19-58 Carpenters Pension Trust Fund for Northern California DB
946276802 1 04-01-58 The Pension Plan of the Mill Cabinet Pension Fund for Northern California DB
946277608 1 08-02-63 Laborers Pension Trust Fund for Northern California DB
946277669 1 11-24-59 Cement Masons Pension Trust Fund for Northern California DB
946284211 1 06-01-65 Industrial Carpenters Pension Fund DB
951867598 1 * Southern California Pipe Trades Trust Fund *
953379185 1 06-10-63 Cement Masons Southern California Pension Trust DB
953746907 1 04-01-82 Western Conference of Teamsters Supplemental Benefit Plan DB
956032478 1 06-01-60 Operating Engineers Pension Trust Fund L#12 DB
956042866 1 08-07-58 California Ironworkers Field Pension Trust DB
956042875 1 09-14-59 Carpenters Pension Trust - Southern California DB
* Information requested from Department of Labor to make this determination, but was not provided.
</TABLE>
<PAGE> 158
SCHEDULE 5.07
ERISA MATTERS
(d) No items.
(e) No items.
(f) The Guarantor maintains a medical plan that provides medical benefits
to former salaried employees.
(g) No items.
(i) No items.
(j) No items.
<PAGE> 159
SCHEDULE 5.09
LIENS IN EXCESS OF $5,000,000
Under Broadway Insurance Company, Ltd.'s (Broadway) captive reinsurance
program, Citibank has issued Letters of Credit to back Broadway's obligations.
Citibank has a continuing lien on certain specified portions of deposits, in an
amount of 105% of the aggregate balance of the outstanding Letters of Credit.
At August 4, 1992, the aggregate balance of outstanding Letters of Credit
related to Broadway Insurance was $32,328,582.
Thus, as of August 4, 1992, the existing lien outstanding is in the amount of
$33,945,011.
<PAGE> 160
SCHEDULE 5.12
ENVIRONMENTAL MATTERS
No Items
<PAGE> 161
SCHEDULE 5.17
CLAIMS OR LITIGATION CONCERNING COPYRIGHTS,
PATENTS, TRADEMARKS, ETC.
No Items
<PAGE> 162
SCHEDULE 5.18(a)
LIST OF SUBSIDIARES OF THE COMPANY
Atascosa Mining Co.
Broadway Insurance Company, Ltd.
Centennial Engineering, Inc.
CF Systems Corporation
CF Systems Remediation, Inc.
Cia. Intemacional de Ingenieria, S.A.
Construcciones Y Servicios Especializados S.A. De C.V.
Emkay Canada Natural Resources, Ltd.
Ferguson Morrison-Knudsen River Ltd.
H.K. Ferguson Benelux, S.A.
H.K. Ferguson Company of Canada Limited
H.K. Ferguson Company of New Zealand Limited
Joy MK Projects Company
MK Capital Corporation
MK-CICAL Holding Company, Inc.
MK-CICAL, S.A.
MK-Ferguson Engineering Company
MK-Ferguson of Idaho Company
MK-Ferguson of Oakridge Company
MK-River Constructie Maatschappij B.V.
MK Transit Properties Corporation
Morrison-Knudsen Company, Inc.
Morrison-Knudsen Company of New Zealand Limited
Morrison-Knudsen Engenharia, S.A.
Morrison-Knudsen Engineers, Inc.
Morfiwn-Knudsen International Company, Inc.
Morrison Knudsen Overseas PTE Ltd.
Motor Coils Manufacturing Co.
National Structures, Inc.
Navasota Mining Company, Inc.
Northern Construction Company Ltd.
Texas High Speed Rail Corporation
Western Aircraft, Inc.
Yampa Mining Co.
<PAGE> 163
SCHEDULE 5.18(b)
EQUITY INVESTMENTS OF THE COMPANY
Westmoreland Resources, Inc.
<PAGE> 164
SCHEDULE 5.18(c)
LIST OF SUBSIDIARIES OF THE GUARANTOR
Emkay Development Company, Inc.
Emkay Capital Investments, Inc.
McConnell Dowell Corporation
MK Sales Company
Morrison Knudsen Corporation (Ohio)
MK Gold Company
National Projects, Inc.
Morrison-Knudsen Services, Inc.
Morrison-Knudsen Financial Company, Inc.
Atascosa Mining Co.
Broadway Insurance Company, Ltd.
Centennial Engineering, Inc.
CF Systems Corporation
CF Systems Remediation, Inc.
Cia. Intemacional de Ingenieria, S.A.
Construcciones Y Servicios Especializados S.A. De C.V.
Emkay Canada Natural Resources, Ltd.
Ferguson Morrison-Knudsen River Ltd.
H.K. Ferguson Benelux, S.A.
H.K. Ferguson Company of Canada Limited
H.K. Ferguson Company of New Zealand Limited
Joy MK Projects Company
MK Capital Corporation
MK-CICAL Holding Company, Inc.
MK-CICAL, S.A.
MK-Ferguson Engineering Company
MK-Ferguson of Idaho Company
MK-Ferguson of Oakridge Company
MK-River Constructie Maatschappij B.V.
MK Transit Properties Corporation
Morrison-Knudsen Company, Inc.
Morrison-Knudsen Company of New Zealand Limited
Morrison-Knudsen Engenharia, S.A.
Morrison-Knudsen Engineers, Inc.
Morrison-Knudsen International Company, Inc.
Morrison Knudsen Overseas PTE Ltd.
Motor Coils Manufacturing Co.
National Structures, Inc.
Navasota Mining Company, Inc.
<PAGE> 165
SCHEDULE 5.18(C)
LIST OF SUBSIDIARIES OF THE GUARANTOR
Page 2
Northern Construction Company Ltd.
Texas High Speed Rail Corporation
Westem Aircraft, Inc.
Yampa Mining Co.
<PAGE> 166
SCHEDULE 5.18(d)
EQUITY INVESTMENTS OF THE GUARANTOR
Ace Limited
American Bank in Poland, Inc.
Beacon Light Products, Inc.
Eastmaque Gold Mines Ltd.
Encore Computer Corporation
H-W Properties
Idaho Company, The
KeyCorp
Meralco Industrial Engineering Services Corporation
Neutron Technology Corporation
West One Bancorp
Westmoreland Resources, Inc.
Wind Harvest Co., Inc.
<PAGE> 167
WAIVER TO STANDBY LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
THIS WAIVER TO STANDBY LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
(the "Waiver"), dated as of March 31, 1994, is entered into by and among
Morrison Knudsen Corporation, an Ohio corporation (the "Company"), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for itself and the
Banks (the "Agent"), and the several financial institutions party to the Credit
Agreement (collectively, the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Standby Letter
of Credit and Reimbursement Agreement dated as of August 4, 1992 as amended by
that Waiver and Amendment to Credit Agreement dated as of December 22, 1992 and
as further modified by that Waiver to Standby Letter of Credit and
Reimbursement Agreement dated as of August 6, 1993 (as so amended and modified,
the "Credit Acrreement") pursuant to which the Agent and the Banks have
extended certain credit facilities to the Company and certain of its
subsidiaries and pursuant to which the Issuing Bank has issued a letter of
credit for the benefit of Metra and for the account of the Company.
B. The Company proposes to consolidate within its wholly-owned
subsidiary, MK Rail Corporation, a Delaware corporation ("MK Rail"), the
business of the remanufacture of locomotives, the manufacture of new
locomotives, the design, manufacture and distribution of locomotive component
parts and the provision of locomotive fleet maintenance services (together, the
"Business"), which heretofore has been conducted through various divisions and
subsidiaries of the Company. In connection therewith, the Company will
transfer certain assets relating to the Business to MK Rail, enter into an
Environment Liability Transfer Agreement pursuant to which MK Rail will assume
all environmental liabilities and obligations relating to the Business,
transfer certain obligations to MK Rail and enter into other arrangements, all
as described in that Form S-1 Registration Statement filed by MK Rail with the
SEC on February 24, 1994 (the "S-1"). Coincident with such transactions, MK
Rail proposes to conduct an initial public offering of eight million shares of
its common stock, as more specifically described in the S-1 (the "Offering").
C. The Company has requested that the Banks (i) consent to the
transfer of property and obligations relating to the Business to MK Rail as
described in the S-1 (the "Transfer"), (ii) consent to the Offering, and (iii)
waive the potential non-compliance with certain existing covenants under the
Credit Agreement in connection with the Transfer and the Offering.
1
<PAGE> 168
D. The Agent and the Banks are willing to consent to and waive
compliance with certain matters for purposes of the Credit Agreement, subject
to the terms and conditions of this Waiver.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to them in the
Credit Agreement.
2 Waiver.
(a) For purposes of this Waiver, the "Items of Non-
Compliance" shall mean:
(i) any non-compliance with the requirements of
Section 7.02 of the Credit Agreement solely as a consequence of the
Transfer or the Offering; and
(ii) any non-compliance with the requirements of
Section 7.03 of the Credit Agreement solely as a consequence of the
Transfer or the offering.
(b) Subject to and upon the terms and conditions hereof,
the Agent and the Banks hereby waive the non-compliance constituting the Items
of Non-Compliance, providing the Transfer and Offering are consummated no later
than June 30, 1994.
(c) The Items of Non-Compliance are prospective only; the
Company represents below that there exists no Default or Event of Default.
Nothing contained herein shall be deemed a waiver of (or otherwise affect
the Agent's or the Banks' ability to enforce) any Default or Event of Default,
including without limitation (i) any Default or Event of Default as may now or
hereafter exist and arise from or otherwise be related to the Transfer or the
Offering (including without limitation any cross-default arising under the
Credit Agreement by virtue of any matters resulting from the Transfer or the
Offering), and (ii) any Default or Event of Default arising at any time after
the Effective Date and which is the same as any of the Items of Non-Compliance.
3. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the
Company of this Waiver have been duly authorized by all necessary corporate and
other action and do not and will not require any
2
<PAGE> 169
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and
enforceable. The Credit Agreement constitutes the legal, valid and binding
obligations of the Company, enforceable against it in accordance with its
respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Credit Agreement are true and correct.
(d) The Company is entering into this Waiver on the basis
of its own investigation and for its own reasons, without reliance upon the
Agent and the Banks or any other Person.
4. Effective Date. This Waiver will become effective as of March
31, 1994 (the "Effective Date"), provided that each of the following conditions
precedent has been satisfied:
(a) The Agent has received from the Company and the
Majority Banks a duly executed original or facsimile copy of this Waiver,
together with a Waiver to Guaranty ("Guaranty Waiver") addressing matters
relating to the subject of this Waiver, duly executed by the Guarantor and the
Majority Banks. The Agent may rely upon any document delivered to it in
legible form by facsimile transmission.
(b) The Agent has received from the Company and the
Guarantor a copy of a resolution passed by the board of directors of each such
corporation, certified by the Secretary or an Assistant Secretary of such
corporation as being in full force and effect on the date hereof, authorizing
the execution, delivery and performance of this Waiver and the Guaranty Waiver,
respectively.
(c) All representations and warranties contained herein
are true and correct as of the Effective Date.
5. Reservation of Rights. The Company acknowledges and agrees
that neither the Agent's nor the Banks' execution and delivery of this Waiver,
shall be deemed (i) to create a course of dealing or otherwise obligate the
Agent or the Banks to forbear or execute similar waivers under the same or
similar circumstances in the future, or (ii) to waive, relinquish or impair
any right of the Agent or the Banks to receive any indemnity or similar payment
from any person or entity as a result of any matter arising from or relating to
the Transfer or the Offering.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to
3
<PAGE> 170
such Credit Agreement shall henceforth refer to the Credit Agreement as amended
by this Waiver. This Waiver shall be deemed incorporated into, and a part of,
the Credit Agreement.
(b) This Waiver shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Waiver.
(c) This Waiver shall be governed by and construed in
accordance with the law of the State of California.
(d) This Waiver may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) This Waiver, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This Waiver supersedes
all prior drafts and communications with respect thereto. This Waiver may not
be amended except in accordance with the provisions of Section 10.01 of the
Credit Agreement.
(f) If any term or provision of this Waiver shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Waiver or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the
Agent, upon demand, for all costs and expenses (including allocated costs of
in-house counsel) incurred by the Agent in connection with the development,
preparation, negotiation, execution and delivery of this Waiver and the
Guaranty Waiver.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver as of the date first above written.
MORRISON KNUDSEN CORPORATION,
an Ohio corporation
By: J. F. CLEARY
--------------------------
J. F. Cleary
Title: VP Finance and Planning
By: D. L. BRIGHAM
--------------------------
D. L. Brigham
Title: Treasurer
4
<PAGE> 171
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: /s/ KEVIN LEADER Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 172
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By: /s/ RICHARD J. CERF
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 173
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: /s/ J. D. HIGGINS -------------------------
----------------------------
Title: Managing Director
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 174
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: /s/ [unreadable signature] -------------------------
----------------------------
Title: Representative
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 175
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: /s/ STAN VANCE Title:
---------------------------- -------------------------
Title: Vice President
-------------------------
5
<PAGE> 176
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ JUDITH A. DOULY
----------------------------
By: Title: Vice President
---------------------------- -------------------------
Title: Vice President
By: /s/ KATHIE WOLFE
----------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 177
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By: /s/ [unreadable signature]
Title: Vice President ----------------------------
Title: G.V.P.
-------------------------
BANK OF MONTREAL By: /s/ [unreadable signature]
----------------------------
Title: G.V.P.
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 178
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By: /s/ [unreadable signature]
----------------------------
Title: V.P.
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By:
------------------------- ----------------------------
Title:
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 179
BANK OF AMERICA NATIONAL TRUST BANQUE NATIONALE DE PARIS
AND SAVINGS ASSOCIATION,
as Agent
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title: Vice President
By:
----------------------------
Title:
BANK OF AMERICA NATIONAL TRUST -------------------------
AND SAVINGS ASSOCIATION, as a
Bank
BANQUE PARIBAS
By:
---------------------------- By:
Title: Vice President ----------------------------
Title:
-------------------------
BANK OF MONTREAL By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CIBC, INC.
THE BANK OF NOVA SCOTIA By:
----------------------------
Title:
By: -------------------------
----------------------------
Title:
------------------------- CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
----------------------------
Title: By: /s/ [unreadable signature]
------------------------- ----------------------------
Title: Authorized Signatory
-------------------------
THE BANK OF TOKYO LIMITED
By:
----------------------------
By: Title:
---------------------------- -------------------------
Title:
-------------------------
5
<PAGE> 180
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By:
By: /s/[unreadable signature] ----------------------------
---------------------------- Title:
Title: Vice President -------------------------
-------------------------
By:
----------------------------
THE LONG-TERM CREDIT BANK OF Title:
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title:
-------------------------
By:
----------------------------
NATIONAL WESTMINSTER BANK PLC Title:
-------------------------
By: By:
---------------------------- ----------------------------
Title: Title:
------------------------- -------------------------
ROYAL BANK OF CANADA
By:
----------------------------
Title:
-------------------------
SAN PAOLO BANK
By:
----------------------------
Title:
-------------------------
By:
----------------------------
Title:
-------------------------
6
<PAGE> 181
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By:
By: ----------------------------
---------------------------- Title:
Title: -------------------------
-------------------------
By:
----------------------------
THE LONG-TERM CREDIT BANK OF Title:
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: /s/ [unreadable signature] WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title: Vice President
-------------------------
By:
----------------------------
NATIONAL WESTMINSTER BANK PLC Title:
-------------------------
By: By:
---------------------------- ----------------------------
Title: Title:
------------------------- -------------------------
ROYAL BANK OF CANADA
By:
----------------------------
Title:
-------------------------
SAN PAOLO BANK
By:
----------------------------
Title:
-------------------------
By:
----------------------------
Title:
-------------------------
6
<PAGE> 182
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By:
By: ----------------------------
---------------------------- Title:
Title: -------------------------
-------------------------
By:
----------------------------
THE LONG-TERM CREDIT BANK OF Title:
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title:
-------------------------
By:
----------------------------
NATIONAL WESTMINSTER BANK PLC Title:
-------------------------
By: /s/ MICHAEL E. KEATING By:
---------------------------- ----------------------------
Title: Vice President Title:
------------------------- -------------------------
ROYAL BANK OF CANADA
By:
----------------------------
Title:
-------------------------
SAN PAOLO BANK
By:
----------------------------
Title:
-------------------------
By:
----------------------------
Title:
-------------------------
6
<PAGE> 183
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By:
By: ----------------------------
---------------------------- Title:
Title: -------------------------
-------------------------
By:
----------------------------
THE LONG-TERM CREDIT BANK OF Title:
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title:
-------------------------
By:
----------------------------
NATIONAL WESTMINSTER BANK PLC Title:
-------------------------
By: By:
---------------------------- ----------------------------
Title: Title:
------------------------- -------------------------
ROYAL BANK OF CANADA
By: /s/ BRIAN W. DIXON
----------------------------
Title: Senior Manager
-------------------------
SAN PAOLO BANK
By:
----------------------------
Title:
-------------------------
By:
----------------------------
Title:
-------------------------
6
<PAGE> 184
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By:
By: ----------------------------
---------------------------- Title:
Title: -------------------------
-------------------------
By:
----------------------------
THE LONG-TERM CREDIT BANK OF Title:
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title:
-------------------------
By:
----------------------------
NATIONAL WESTMINSTER BANK PLC Title:
-------------------------
By: By:
---------------------------- ----------------------------
Title: Title:
------------------------- -------------------------
ROYAL BANK OF CANADA
By:
----------------------------
Title:
-------------------------
SAN PAOLO BANK
By: /s/ [unreadable signature]
----------------------------
Title: A.V.P.
-------------------------
By: /s/ [unreadable signature]
----------------------------
Title: A.V.P.
-------------------------
6
<PAGE> 185
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By: /s/ ANDRES T. BROWN
By: ----------------------------
---------------------------- Title: Vice President
Title: -------------------------
-------------------------
By: /s/ PETER S. HUMBER
----------------------------
THE LONG-TERM CREDIT BANK OF Title: Vice President
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title:
-------------------------
By:
----------------------------
NATIONAL WESTMINSTER BANK PLC Title:
-------------------------
By: By:
---------------------------- ----------------------------
Title: Title:
------------------------- -------------------------
ROYAL BANK OF CANADA
By:
----------------------------
Title:
-------------------------
SAN PAOLO BANK
By:
----------------------------
Title:
-------------------------
By:
----------------------------
Title:
-------------------------
6
<PAGE> 186
HONG KONG AND SHANGHAI BANKING UNION BANK OF SWITZERLAND
CORPORATION
By:
By: ----------------------------
---------------------------- Title:
Title: -------------------------
-------------------------
By:
----------------------------
THE LONG-TERM CREDIT BANK OF Title:
JAPAN, LTD. LOS ANGELES AGENCY -------------------------
By: WESTDEUTSCHE LANDESBANK
---------------------------- GIROZENTRALE
Title:
-------------------------
By: /s/ [unreadable signature]
----------------------------
NATIONAL WESTMINSTER BANK PLC Title: V.P.
-------------------------
By: By: /s/ [unreadable signature]
---------------------------- ----------------------------
Title: Title: Associate
------------------------- -------------------------
ROYAL BANK OF CANADA
By:
----------------------------
Title:
-------------------------
SAN PAOLO BANK
By:
----------------------------
Title:
-------------------------
By:
----------------------------
Title:
-------------------------
6
<PAGE> 187
WAIVER TO GUARANTY
THIS WAIVER TO GUARANTY (the "Waiver"), dated as of March 31, 1994, is
entered into by and among, Morrison Knudsen Corporation, a Delaware corporation
(the "Guarantor"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
agent for itself and the Banks (the "Agent"), and the several financial
institutions party to the Credit Agreement (collectively, the "Banks").
RECITALS
A. Morrison Knudsen Corporation, an Ohio corporation (the
"Company"), Banks, and Agent are parties to a Standby Letter of Credit and
Reimbursement Agreement dated as of August 4, 1992 as amended by that Waiver
and Amendment to Credit Agreement dated as of December 22, 1992 and as further
modified by that Waiver to Standby Letter of Credit and Reimbursement Agreement
dated as of August 6, 1993 (as so amended and modified, the "Credit
Agreement") pursuant to which the Agent and the Banks have extended certain
credit facilities to the Company and certain of its subsidiaries and pursuant
to which the Issuing Bank has issued a letter of credit for the benefit of
Metra and for the account of the Company. The obligations of the Company under
the Credit Agreement are unconditionally guaranteed by the Guarantor pursuant
to that Guaranty dated as of August 4, 1992, as amended or modified by the
Waiver and Amendment to Guaranty dated as of December 22, 1992 and that Waiver
to Guaranty dated as of August 6, 1993 (as so amended and modified, the
"Guaranty").
B. The Company proposes to consolidate within its wholly-owned
subsidiary, MK Rail Corporation, a Delaware corporation ("IMK Rail"), the
business of the remanufacture of locomotives, the manufacture of new
locomotives, the design, manufacture and distribution of locomotive component
parts and the provision of locomotive fleet maintenance services (together, the
"Business"), which heretofore has been conducted through various divisions and
subsidiaries of the Company. In connection therewith, the Company will
transfer certain assets relating to the Business to MK Rail, enter into an
Environment Liability Transfer Agreement pursuant to which MK Rail will assume
all environmental liabilities and obligations relating to the Business,
transfer certain obligations to MK Rail and enter into other arrangements, all
as described in that Form S-1 Registration Statement filed by MK Rail with the
SEC on February 24, 1994 (the "S-1"). Coincident with such transactions, MK
Rail proposes to conduct an initial public offering of eight million shares of
its common stock, as more specifically described in the S-1 (the "Offering").
1
<PAGE> 188
C. The Company and the Guarantor have requested that the Banks
(i) consent to the transfer of property and obligations relating to the
Business to MK Rail as described in the S-1 (the "Transfer"), (ii) consent to
the Offering, and (iii) waive the potential non-compliance with certain
existing covenants under the Credit Agreement and the Guaranty in connection
with the Transfer and the Offering.
D. The Agent and the Banks are willing to consent to and waive
compliance with certain matters for purposes of the Guaranty, subject to the
terms and conditions of this Waiver.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to them in the
Credit Agreement.
2. Waiver.
(a) For purposes of this Waiver, the "Items of Non-
Compliance" shall mean:
(i) any non-compliance with the requirements of
Section 5.2 of the Guaranty solely as a consequence of the Transfer
or the Offering; and
(ii) any non-compliance with the requirements of
Section 5.3 of the Guaranty solely as a consequence of the Transfer or
the Offering.
(b) Subject to and upon the terms and conditions hereof,
the Agent and the Banks hereby waive the non-compliance constituting the Items
of Non-Compliance, providing the Transfer and Offering are consummated no later
than June 30, 1994.
(c) The Items of Non-Compliance are prospective only; the
Guarantor represents below that there exists no breach of or default under the
Guaranty. Nothing contained herein shall be deemed a waiver of (or otherwise
affect the Agent's or the Banks' ability to enforce) any Default or Event of
Default, including without limitation (i) any Default or Event of Default as
may now or hereafter exist and arise from or otherwise be related to the
Transfer or the Offering (including without limitation any cross-default
arising under the Credit Agreement by virtue of any matters resulting from the
Transfer or the Offering), and (ii) any Default or Event of Default arising at
any time after the Effective Date and which is the same as any of the Items of
Non-Compliance.
2
<PAGE> 189
3. Representations and Warranties. The Guarantor hereby
represents and warrants to the Agent and the Banks as follows:
(a) No breach or default has occurred and is continuing
under the Guaranty.
(b) The execution, delivery and performance by the
Guarantor of this Waiver have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Guaranty constitutes
the legal, valid and binding obligations of the Guarantor, enforceable against
it in accordance with its respective terms, without defense, counterclaim or
offset.
(c) All representations and warranties of the Guarantor
contained in the Guaranty are true and correct.
(d) The Guarantor is entering into this Waiver on the
basis of its own investigation and for its own reasons, without reliance upon
the Agent and the Banks or any other Person.
4. Effective Date. This Waiver will become effective as of March
31, 1994 (the "Effective Date"), provided that each of the following conditions
precedent has been satisfied:
(a) The Agent has received from the Guarantor and the
Majority Banks a duly executed original or facsimile copy of this Waiver,
together with a Waiver to Standby Letter of Credit and Reimbursement Agreement
("Agreement Waiver") addressing matters relating to the subject of this
Waiver, duly executed by the Guarantor and the Majority Banks. The Agent may
rely upon any document delivered to it in legible form by facsimile
transmission.
(b) The Agent has received from the Guarantor and the
Company a copy of a resolution passed by the board of directors of each such
corporation, certified by the Secretary or an Assistant Secretary of such
corporation as being in full force and effect on the date hereof,
authorizing the execution, delivery and performance of this Waiver and the
Agreement Waiver, respectively.
(c) All representations and warranties contained herein
are true and correct as of the Effective Date.
5. Reservation of Rights. The Guarantor acknowledges and agrees
that neither the Agent's nor the Banks' execution and delivery of this Waiver,
shall be deemed (i) to create a course of dealing or otherwise obligate the
Agent or the Banks to forbear or execute similar waivers under the same or
similar circumstances in the future, or (ii) to waive, relinquish or
3
<PAGE> 190
impair any right of the Agent or the Banks to receive any indemnity or similar
payment from any person or entity as a result of any matter arising from or
relating to the Transfer or the Offering. The Guarantor hereby consents to the
execution, delivery and performance by the Company, the Agent and the Banks of
the Agreement Waiver and hereby reaffirms and agrees that the Guaranty is in
full force and effect, without defense, offset or counterclaim.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Guaranty are and shall remain in full force
and effect and all references therein to such Guaranty shall henceforth refer
to the Guaranty as amended by this Waiver. This Waiver shall be deemed
incorporated into, and a part of, the Guaranty.
(b) This Waiver shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Waiver.
(c) This Waiver shall be governed by and construed in
accordance with the law of the State of California.
(d) This Waiver may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) This Waiver, together with the Guaranty, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Waiver supersedes all prior
drafts and communications with respect thereto.
(f) If any term or provision of this Waiver shall be
deemed prohibited by or invalid under any applicable law, such
4
<PAGE> 191
provision shall be invalidated without affecting the remaining provisions of
this Waiver or the Guaranty, respectively.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver as of the date first above written.
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
By: /s/ J.F. CLEARY
--------------------------
J.F. Cleary
Title: VP Finance & Planning
----------------------
By: /s/ D.L. BRIGHAM
--------------------------
D.L. Brigham
Title: Treasurer
----------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
--------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
By:
--------------------------
Title: Vice President
5
<PAGE> 192
provision shall be invalidated without affecting the remaining provisions of
this Waiver or the Guaranty, respectively.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver as of the date first above written.
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ KEVIN LEADER
--------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
By:
--------------------------
Title: Vice President
5
<PAGE> 193
provision shall be invalidated without affecting the remaining provisions of
this Waiver or the Guaranty, respectively.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver as of the date first above written.
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
--------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
By: /s/ RICHARD J. CERF
--------------------------
Title: Vice President
5
<PAGE> 194
BANK OF MONTREAL BANQUE PARIBAS
By: /s/J.D. HIGGINS By:
------------------------- -------------------------
Title: Managing Director Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
6
<PAGE> 195
BANK OF MONTREAL BANQUE PARIBAS
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: /s/ [unreadable signature] ----------------------
-------------------------
Title: Representative
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
6
<PAGE> 196
BANK OF MONTREAL BANQUE PARIBAS
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By: /s/ STAN VANCE
------------------------- By:
Title: Vice President -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
6
<PAGE> 197
BANK OF MONTREAL BANQUE PARIBAS
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: /s/ JUDITH A. DOWLING Title:
------------------------- ----------------------
Title: Vice President
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By: /s/ KATHERINE WOLFE
------------------------- By:
Title: Vice President -------------------------
---------------------- Title:
----------------------
6
<PAGE> 198
BANK OF MONTREAL BANQUE PARIBAS
By: By: /s/ [unreadable signature]
------------------------- -------------------------
Title: Title: G.V.P.
---------------------- ----------------------
By: /s/ [unreadable signature]
THE BANK OF NOVA SCOTIA -------------------------
Title: G.V.P.
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
6
<PAGE> 199
BANK OF MONTREAL BANQUE PARIBAS
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By: /s/ [unreadable signature]
------------------------- -------------------------
Title: Title: V.P.
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
6
<PAGE> 200
BANK OF MONTREAL BANQUE PARIBAS
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By: /s/ [unreadable signature]
Title: -------------------------
---------------------- Title: Authorized Signatory
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
6
<PAGE> 201
BANK OF MONTREAL BANQUE PARIBAS
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
By:
THE BANK OF NOVA SCOTIA -------------------------
Title:
By: ----------------------
-------------------------
Title:
---------------------- CIBC, INC.
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
------------------------- By:
Title: -------------------------
---------------------- Title:
----------------------
BANQUE NATIONALE DE PARIS By:
------------------------
By: Title:
------------------------- ----------------------
Title:
----------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
------------------------- By: /s/ [unreadable signature]
Title: -------------------------
---------------------- Title: Vice President
----------------------
6
<PAGE> 202
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY By:
-------------------------
By: /s/ [unreadable signature] Title:
-------------------------- -----------------------
Title: Vice President
----------------------- By:
--------------------------
Title:
NATIONAL WESTMINSTER BANK PLC -----------------------
By:
-------------------------- WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Title:
----------------------- By:
--------------------------
Title:
ROYAL BANK OF CANADA -----------------------
By: By:
-------------------------- --------------------------
Title: Title:
----------------------- -----------------------
SAN PAOLO BANK
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
7
<PAGE> 203
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY By:
-------------------------
By: Title:
-------------------------- -----------------------
Title:
----------------------- By:
--------------------------
Title:
NATIONAL WESTMINSTER BANK PLC -----------------------
By: /s/ MICHAEL E. KEATING
-------------------------- WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Title: Vice President
----------------------- By:
--------------------------
Title:
ROYAL BANK OF CANADA -----------------------
By: By:
-------------------------- --------------------------
Title: Title:
----------------------- -----------------------
SAN PAOLO BANK
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
7
<PAGE> 204
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY By:
-------------------------
By: Title:
-------------------------- -----------------------
Title:
----------------------- By:
--------------------------
Title:
NATIONAL WESTMINSTER BANK PLC -----------------------
By:
-------------------------- WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Title:
----------------------- By:
--------------------------
Title:
ROYAL BANK OF CANADA -----------------------
By: /s/ BRIAN W. DIXON By:
-------------------------- --------------------------
Title: Senior Manager Title:
----------------------- -----------------------
SAN PAOLO BANK
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
7
<PAGE> 205
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY By:
-------------------------
By: Title:
-------------------------- -----------------------
Title:
----------------------- By:
--------------------------
Title:
NATIONAL WESTMINSTER BANK PLC -----------------------
By:
-------------------------- WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Title:
----------------------- By:
--------------------------
Title:
ROYAL BANK OF CANADA -----------------------
By: By:
-------------------------- --------------------------
Title: Title:
----------------------- -----------------------
SAN PAOLO BANK
By: /s/ [unreadable signature]
--------------------------
Title: A.V.P.
-----------------------
By: /s/ [unreadable signature]
--------------------------
Title: A.V.P.
-----------------------
7
<PAGE> 206
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY By: /s/ ANDRES T. BROWN
-------------------------
By: Title: Vice President
-------------------------- -----------------------
Title:
----------------------- By: /s/ PETER S. HUMBER
--------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC -----------------------
By:
-------------------------- WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Title:
----------------------- By:
--------------------------
Title:
ROYAL BANK OF CANADA -----------------------
By: By:
-------------------------- --------------------------
Title: Title:
----------------------- -----------------------
SAN PAOLO BANK
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
7
<PAGE> 207
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY By:
-------------------------
By: Title:
-------------------------- -----------------------
Title:
----------------------- By:
--------------------------
Title:
NATIONAL WESTMINSTER BANK PLC -----------------------
By:
-------------------------- WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Title:
----------------------- By: /s/ [unreadable signature]
--------------------------
Title: V.P.
ROYAL BANK OF CANADA -----------------------
By: By: /s/ ROBERT J. NOLAN
-------------------------- --------------------------
Title: Title: Associate
----------------------- -----------------------
SAN PAOLO BANK
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
7
<PAGE> 208
WAIVER AND SECOND AMENDMENT
TO STANDBY LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO STANDBY LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT (the "Waiver and Amendment"), dated as of August 9,
1994, is entered into by and among Morrison Knudsen Corporation, an Ohio
corporation (the "Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for itself and the Banks (the "Agent"), and the several
financial institutions party to the Letter of Credit and Reimbursement
Agreement (collectively, the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Standby Letter
of Credit and Reimbursement Agreement dated as of August 4, 1992 as amended by
that Waiver and Amendment to Credit Agreement dated as of December 22, 1992,
as further modified by that Waiver to Standby Letter of Credit and
Reimbursement Agreement dated as of August 6, 1993, and as further modified by
that Waiver to Standby Letter of Credit and Reimbursement Agreement dated as of
March 31, 1994 (as so amended and modified, the "Credit Agreement") pursuant to
which the Agent and the Banks have extended certain credit facilities to the
Company and certain of its subsidiaries and pursuant to which the Issuing Bank
has issued a letter of credit for the benefit of Metra and for the account of
the Company.
B. The Company has reported to the Agent and the Banks the
existence of a certain event of default under the Credit Agreement. The
Company has requested that the Banks waive such event of default and agree to
certain amendments of the Credit Agreement.
C. The Banks are willing to waive such default under the Credit
Agreement, and to amend the Credit Agreement, subject to the terms and
conditions of this Waiver and Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein have the meanings, if any, assigned to them in the Credit
Agreement.
1
<PAGE> 209
2. Default and waiver.
(a) For purposes of this Waiver and Amendment, the
"Existing Default" means the default existing on this date under Section 7.13
of the Credit Agreement for the period ended on June 30, 1994 by reason of the
non-recurring charges to income for the quarter ended June 30, 1994 in the
aggregate pre-tax amount of $92,022,000 announced by the Company on July 19,
1994.
(b) Subject to and upon the terms and conditions hereof,
the Banks hereby waive the Existing Default.
(c) Nothing contained herein shall be deemed a waiver of
(or otherwise affect the Agent's or the Banks' ability to enforce) any other
default or Event of Default, including without limitation (i) any default or
Event of Default as may now or hereafter exist and arise from or otherwise be
related to the Existing Default (including without limitation any cross-default
arising under the Credit Agreement by virtue of any matters resulting from the
Existing Default), and (ii) any default or Event of Default arising at any time
after the Effective Date and which is the same as any of the Existing Default.
3. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is amended by
inserting the following definitions in the proper alphabetical location:
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto that is a nationally recognized rating agency.
"S&P" means Standard & Poor's Corporation and any successor
thereto that is a nationally recognized rating agency.
(b) Section 2.08(a) of the Credit Agreement is amended by
inserting "(i)" after "(a)" and adding the following as clause (ii) to Section
2.08(a):
"(ii) The Letter of Credit Fee will increase to
0.50% per annum if (A) the Company's long-term debt is rated
below BBB- by S&P or below Baa3 by Moody's, or (B) the
Company's commercial paper is rated below A3 by S&P or P3 by
Moody's, or (C) both of the Company's long term debt and
commercial paper is not rated by either S&P or Moody's. The
increase in the fee shall take effect as of the opening of
business on the day on which either of the rating agencies
announces a change in the relevant rating."
2
<PAGE> 210
(c) Section 6.01 of the Credit Agreement is amended by
adding the following as new subsection (e) to such Section:
"(e) as soon as available but not later than 45 days
after the end of each of its fiscal quarters, a current schedule of
Metra cars delivered, payments, and Letter of Credit status
substantially in the form of the "METRA LETTER OF CREDIT - PROJECTED
L/C REQUIREMENT" in the form of the chart provided in Tab 2 of the
Company's "Presentation to Financial Institutions" dated July 1994."
(d) Section 7.13 of the Credit Agreement is amended by
inserting "(i)" immediately after the caption to such Section and adding the
following as subsection (ii) to such Section:
"(ii) For purposes of this Section, Consolidated Operating
Income shall be calculated without giving effect to the non-recurring
charges to income for the quarter ended June 30, 1994 in the aggregate
pre-tax amount of $92,022,000 announced by the Company on July 19,
1994."
4. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) Other than the Existing Default, no Default or Event
of Default has occurred and is continuing.
(b) The execution, delivery and performance by the
Company of this Waiver and Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any registration
with, consent or approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable. The Credit
Agreement as amended by this Waiver and Amendment constitutes the legal, valid
and binding obligations of the Company, enforceable against it in accordance
with its respective terms, without defense, counterclaim or offset.
(c) Subject to the Existing Default, all representations
and warranties of the Company contained in the Credit Agreement are true and
correct.
(d) The Company is entering into this Waiver and
Amendment on the basis of its own investigation and for its own reasons,
without reliance upon the Agent and the Banks or any other Person.
5. Effective Date. This Waiver and Amendment will become
effective as of August 9, 1994 (the "Effective Date"),
3
<PAGE> 211
provided that each of the following conditions precedent has been satisfied:
(a) The Agent has received from the Company and the
Majority Banks a duly executed original or facsimile copy of this waiver,
together with (i) a duly executed Guarantor Acknowledgment and Consent in the
form attached hereto (the "Consent"), and (ii) a Waiver to Guaranty ("Guaranty
Waiver") addressing matters relating to the subject of this Waiver, duly
executed by the Guarantor and the Majority Banks. The Agent may rely upon any
document delivered to it in legible form by facsimile transmission.
(b) The Agent has received from the Company and the
Guarantor a copy of a resolution passed by the board of directors of each such
corporation, certified by the Secretary or an Assistant Secretary of such
corporation as being in full force and effect on the date hereof, authorizing
the execution, delivery and performance of this Waiver and the Guaranty Waiver,
respectively.
(c) All representations and warranties contained herein
are true and correct as of the Effective Date.
(d) The Agent has received from the Company (i) the sum
of $2,5OO for each Bank responding, by close of business on August 5, 1994, to
the Agent's letter to the Banks dated August 1, 1994, describing the Company's
request for this Waiver and Amendment; and (ii) the sum agreed upon between the
Company and the Agent as the one-time non-refundable administrative agency fee
for the account of the Agent in connection with this Waiver and Amendment.
6. Reservation of Rights. The Company acknowledges and agrees
that neither the Agent's nor the Banks' forbearance in exercising their rights
and remedies in connection with the Existing Default, nor the execution and
delivery by the Agent and the Banks of this Waiver and Amendment, shall be
deemed (i) to create a course of dealing or otherwise obligate the Agent or the
Banks to forbear or execute similar waivers under the same or similar
circumstances in the future, or (ii) to waive, relinquish or impair any right
of the Agent or the Banks to receive any indemnity or similar payment from any
person or entity as a result of any matter arising from or relating to the
Existing Default.
4
<PAGE> 212
7. Miscellaneous.
(a) The Company hereby covenants and agrees to pay to the
Agent and the Banks on demand the fees described in Paragraph 5(d) of this
Waiver and Amendment.
(b) Except as herein expressly amended, all terms,
covenants and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as amended by this Waiver and
Amendment. This Waiver and Amendment shall be deemed incorporated into, and a
part of, the Credit Agreement.
(c) This Waiver and Amendment shall be binding upon and
inure to the benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are intended in connection
with this Waiver and Amendment.
(d) This Waiver and Amendment shall be governed by and
construed in accordance with the law of the State of California.
(e) This Waiver and Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(f) This Waiver and Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein and therein. This Waiver and
Amendment supersedes all prior drafts and communications with respect thereto.
This Waiver and Amendment may not be amended except in accordance with the
provisions of Section 10.01 of the Credit Agreement.
(g) If any term or provision of this Waiver and Amendment
shall be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining provisions of
this Waiver and Amendment or the Credit Agreement, respectively.
(h) Company covenants to pay to or reimburse the Agent,
upon demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Waiver and Amendment and the administration of
the Existing Default, including without limitation appraisal, audit, search and
filing fees incurred in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed
5
<PAGE> 213
and delivered this Waiver and Amendment as of the date first above written.
MORRISON KNUDSEN CORPORATION,
an Ohio corporation
By: /s/ J. F. CLEARY
-----------------------------------
Name: J. F. Cleary
Title: VP- Finance & Planning
By: /s/ D. L. BRIGHAM
-----------------------------------
Name: D.L. Brigham
Title: Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
-----------------------------------
Name:
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By:
-----------------------------------
Name:
Title: Vice President
6
<PAGE> 214
and delivered this Waiver and Amendment as of the date first above written.
MORRISON KNUDSEN CORPORATION,
an Ohio corporation
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ IRA BARTOVIC
-----------------------------------
Name: Ira Bartovic
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ RICHARD J. CERF
-----------------------------------
Name: Richard I. Cerf
Title: Vice President
6
<PAGE> 215
BANK OF MONTREAL
By: /s/ J. DONALD HIGGINS
-------------------------------
Name: J. Donald Higgins
Title: Managing Director
THE BANK OF NOVA SCOTIA
By:
-------------------------------
Name:
Title:
THE BANK OF TOKYO LIMITED
By:
-------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
-------------------------------
Name:
Title:
7
<PAGE> 216
BANK OF MONTREAL
By:
-------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/ M. VAN OTTERLOO
-------------------------------
Name: M. Van Otterloo
Title: Senior Relationship Manager
THE BANK OF TOKYO LIMITED
By:
-------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
-------------------------------
Name:
Title:
7
<PAGE> 217
BANK OF MONTREAL
By:
-------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
-------------------------------
Name:
Title:
THE BANK OF TOKYO LIMITED
By: /s/ MICHIO TOMI
-------------------------------
Name: Michio Tomi
Title: General Manager
BANQUE NATIONALE DE PARIS
By:
-------------------------------
Name:
Title:
7
<PAGE> 218
BANK OF MONTREAL
By:
-------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
-------------------------------
Name:
Title:
THE BANK OF TOKYO LIMITED
By:
-------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By: /s/ JUDITH A. DOWLING
-------------------------------
Name: Judith A. Dowling
Title: Vice President
By: /s/ KATHERINE WOLFE
-------------------------------
Name: Katherine Wolfe
Title: Vice President
7
<PAGE> 219
BANQUE PARIBAS
By: /s/ [unreadable signature]
-------------------------------
Name: ?
Title: G.V.P.
By: /s/ [unreadable signature]
-------------------------------
Name: ?
Title: V.P.
CIBC, INC.
By:
-------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
HONG KONG AND SHANGHAI BANKING
CORPORATION
By:
-------------------------------
Name:
Title:
8
<PAGE> 220
BANQUE PARIBAS
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
CIBC, INC.
By: /s/ DEAN J. DECKER
-------------------------------
Name: Dean J. Decker
Title: AVP
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
HONG KONG AND SHANGHAI BANKING
CORPORATION
By:
-------------------------------
Name:
Title:
8
<PAGE> 221
BANQUE PARIBAS
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
CIBC, INC.
By:
-------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By: /s/ THIERRY VINCENT
-------------------------------
Name: Thierry Vincent
Title: Authorized Signatory
HONG KONG AND SHANGHAI BANKING
CORPORATION
By:
-------------------------------
Name:
Title:
8
<PAGE> 222
BANQUE PARIBAS
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
CIBC, INC.
By:
-------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: /s/ G. C. FREEMAN
-------------------------------
Name: G. C. Freeman
Title: V.P.
8
<PAGE> 223
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By: /s/ CURT BIRIN
-----------------------------------
Name: Curt Birin
Title: VP
NATIONAL WESTMINSTER BANK PLC
By:
-----------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
-----------------------------------
Name:
Title:
SAN PAOLO BANK
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
9
<PAGE> 224
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By:
-----------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By: /s/ MICHAEL E. KEATING
-----------------------------------
Name: Michael E. Keating
Title: Vice President
ROYAL BANK OF CANADA
By:
-----------------------------------
Name:
Title:
SAN PAOLO BANK
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
9
<PAGE> 225
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By:
-----------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
-----------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By: /s/ BRIAN W. DIXON
-----------------------------------
Name: Brian W. Dixon
Title: Senior Manager
SAN PAOLO BANK
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
9
<PAGE> 226
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By:
-----------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
-----------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
-----------------------------------
Name:
Title:
SAN PAOLO BANK
By: /s/ DONALD W. BROWN
-----------------------------------
Name: Donald W. Brown
Title: Branch Manager
By: /s/ GLEN BINDER
-----------------------------------
Name: Glen Binder
Title: Vice President
9
<PAGE> 227
UNION BANK OF SWITZERLAND
By: /s/ PETER S. HUMBER
-------------------------------
Name: Peter S. Humber
Title: Vice President
By: /s/ THOMAS G. JACKSON
-------------------------------
Name: Thomas G. Jackson
Title: First Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
10
<PAGE> 228
UNION BANK OF SWITZERLAND
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
------------------------------
Name:
Title:
By: /s/ JAMES MALLEY
------------------------------
Name: J. M. Malley
Title: Associate
10
<PAGE> 229
GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, Morrison Knudsen Corporation, a Delaware corporation
and a guarantor with respect to the Company's obligations to the Agent and the
Banks under the Credit Agreement hereby (i) acknowledges and consents to the
execution, delivery and performance by Company of the foregoing Waiver and
Second Amendment to Letter of Credit and Reimbursement Agreement ("Waiver and
Amendment"), and (ii) reaffirms and agrees that the guaranty to which the
undersigned is party and all other documents and agreements executed and
delivered by the undersigned to the Agent and the Banks in connection with the
Credit Agreement are in full force and effect, without defense, offset or
counterclaim. (Capitalized terms used herein have the meanings specified in
the Waiver and Amendment.)
Dated: August 9, 1994
MORRISON KNUDSEN CORPORATION
By: /s/ S. G. HANKS
--------------------------------
Name: S. G. Hanks
Title: Exec. VP-Finance & Admin., & Secretary
By: /s/ D. L. BRIGHAM
--------------------------------
Name: D.L. Brigham
Title: Treasurer
11
<PAGE> 230
WAIVER AND SECOND AMENDMENT TO GUARANTY
THIS WAIVER AND SECOND AMENDMENT TO GUARANTY (the "Waiver and
Amendment"), dated as of August 9 , 1994, is entered into by and among Morrison
Knudsen Corporation, a Delaware corporation (the "Guarantor"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for itself and the Banks (the
"Agent"), and the several financial institutions party to the Credit Agreement
(collectively, the "Banks").
RECITALS
A. Morrison Knudsen Corporation, an Ohio corporation (the
"Company"), Banks, and Agent are parties to a Standby Letter of Credit and
Reimbursement Agreement dated as of August 4, 1992 as amended by that Waiver
and Amendment to Credit Agreement dated as of December 22, 1992, as further
modified by that Waiver to Standby Letter of Credit and Reimbursement Agreement
dated as of August 6, 1993, and as further modified by that Waiver to Standby
Letter of Credit and Reimbursement Agreement dated as of March 31, 1994 (as so
amended and modified, the "Credit Agreement") pursuant to which the Agent and
the Banks have extended certain credit facilities to the Company and certain of
its subsidiaries and pursuant to which the Issuing Bank has issued a letter of
credit for the benefit of Metra and for the account of the Company. The
obligations of the Company under the Credit Agreement are unconditionally
guaranteed by the Guarantor pursuant to that Guaranty dated as of August 4,
1992, as amended by the Waiver and Amendment to Guaranty dated as of December
22, 1992, as modified by that Waiver to Guaranty dated as of August 6, 1993,
and as further modified by that Waiver to Guaranty dated as of March 31, 1994
(as so amended and modified, the "Guaranty").
B. The Guarantor has reported to the Agent and the Banks
non-compliance, for the period ending on June 30, 1994, with Section 5.13 of
the Guaranty. The Guarantor has requested that the Banks waive this
non-compliance and that the Banks amend such Section as set forth in this
Waiver and Amendment.
C. The Banks are willing to waive non-compliance with and amend
Section 5.13 of the Guaranty, subject to the terms and conditions of this
Waiver and Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein,
1
<PAGE> 231
capitalized terms used herein shall have the meanings, if any, assigned to them
in the Credit Agreement.
2. Waiver.
(a) Subject to and upon the terms and conditions hereof,
the Banks hereby waive the Guarantor's failure to comply with Section 5.13 of
the Guaranty for the period ending on June 30, 1994.
(b) Nothing contained herein shall be deemed a waiver of
(or otherwise affect the Agent's or the Banks' ability to enforce) any other
default or Event of Default, including without limitation (i) any default or
Event of Default as may now or hereafter exist and arise from or otherwise be
related to the matters covered by Paragraph 2(a) of this Waiver and Amendment
(including without limitation any cross-default arising under the Credit
Agreement by virtue of any matters resulting from the matters covered by
Paragraph 2(a) of this Waiver and Amendment and (ii) any default or Event of
Default arising at any time after the Effective Date and which is the same as
any of the matters covered in Paragraph 2(a) of this Waiver and Amendment.
3. Amendment to the Guaranty. Section 5.13 of the Guaranty is
amended by inserting "(i)" immediately after the caption to such Section and
adding the following as subsection (ii) to such Section:
"(ii) For purposes of this Section, Consolidated Operating
Income shall be calculated without giving effect to the non-recurring
charges to income for the quarter ended June 30, 1994 in the aggregate
pre-tax amount of $92,022,000 announced by the Company on July 19,
1994."
4. Representations and Warranties. The Guarantor hereby
represents and warrants to the Agent and the Banks as follows:
(a) Except as set forth above, no breach or default has
occurred and is continuing under the Guaranty.
(b) The execution, delivery and performance by the
Guarantor of this Waiver and Amendment have been duly authorized by all
necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and
enforceable. The Guaranty constitutes the legal, valid and binding obligations
of the Guarantor, enforceable against it in accordance with its respective
terms, without defense, counterclaim or offset.
2
<PAGE> 232
(c) All representations and warranties of the Guarantor
contained in the Guaranty are true and correct.
(d) The Guarantor is entering into this Waiver and
Amendment on the basis of its own investigation and for its own reasons,
without reliance upon the Agent and the Banks or any other Person.
5. Effective Date. This Waiver and Amendment will become
effective as of August 9, 1994 (the "Effective Date"), provided that each of
the following conditions precedent has been satisfied:
(a) The Agent has received from the Guarantor and the
Majority Banks a duly executed original or facsimile copy of this Waiver and
Amendment, together with (i) a Waiver and Second Amendment to Standby Letter of
Credit and Reimbursement Agreement ("Agreement Waiver and Second Amendment")
addressing matters relating to the subject of this Waiver and Amendment, duly
executed by the Company and the Majority Banks, and (ii) the Consent executed
by the Guarantor and required under the Agreement Waiver and Amendment. The
Agent may rely upon any document delivered to it in legible form by facsimile
transmission.
(b) The Agent has received from the Guarantor and the
Company a copy of a resolution passed by the board of directors of each such
corporation, certified by the Secretary or an Assistant Secretary of such
corporation as being in full force and effect on the date hereof, authorizing
the execution, delivery and performance of this Waiver and Amendment and the
Consent, and the Agreement Waiver and Amendment, respectively.
(c) All representations and warranties contained herein
are true and correct as of the Effective Date.
6. Reservation of Rights. The Guarantor acknowledges and agrees
that neither the Agent's nor the Banks' execution and delivery of this Waiver
and Amendment, shall be deemed (i) to create a course of dealing or otherwise
obligate the Agent or the Banks to forbear or execute similar waivers under the
same or similar circumstances in the future, or (ii) to waive, relinquish or
impair any right of the Agent or the Banks to receive any indemnity or similar
payment from any person or entity as a result of any matter arising from or
relating to the Transfer or the Offering. The Guarantor hereby consents to the
execution, delivery and performance by the Company, the Agent and the Banks of
the Agreement Waiver and Amendment and hereby reaffirms and agrees that the
Guaranty is in full force and effect, without defense, offset or counterclaim.
3
<PAGE> 233
7. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Guaranty are and shall remain in full force and
effect and all references therein to such Guaranty shall henceforth refer to
the Guaranty as amended by this Waiver and Amendment. This Waiver and Amendment
shall be deemed incorporated into, and a part of, the Guaranty.
(b) This Waiver and Amendment shall be binding upon and
inure to the benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are intended in connection
with this Waiver and Amendment.
(c) This Waiver and Amendment shall be governed by and
construed in accordance with the law of the State of California.
(d) This Waiver and Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) This Waiver and Amendment, together with the
Guaranty, contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein and therein. This Waiver and
Amendment supersedes all prior drafts and communications with respect thereto.
(f) If any term or provision of this Waiver and Amendment
shall be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining provisions of
this Waiver and Amendment or the Guaranty, respectively.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Waiver and Amendment as of the date first above written.
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
By: /s/ STEPHEN G. HANKS
___________________________________________
Title: Executive VP-Finance & Admin & Secretary
By: /s/ D.L. BRIGHAM
___________________________________________
Title: Treasurer
4
<PAGE> 234
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By: /s/ IRA BARTOVIC
-----------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ RICHARD J. CERF
-----------------------------------
Title: Vice President
5
<PAGE> 235
BANK OF MONTREAL BANQUE PARIBAS
By: /s/ J. DONALD HIGGINS By:
-------------------------------- ---------------------------------
Title: Managing Director Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By:
Title: ---------------------------------
-----------------------------
Title:
------------------------------
BANQUE NATIONALE DE PARIS By:
---------------------------------
Title:
By: ------------------------------
--------------------------------
Title:
-----------------------------
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
Title: By:
----------------------------- ---------------------------------
Title:
------------------------------
6
<PAGE> 236
BANK OF MONTREAL BANQUE PARIBAS
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By: /s/ M. VAN OTTERLOO
--------------------------------
Title: Senior Relationship Manager CIBC, INC.
-----------------------------
By: /s/ J. S. YORK By:
-------------------------------- ---------------------------------
Title: Officer Title:
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By:
---------------------------------
Title:
----------------------------- Title:
------------------------------
BANQUE NATIONALE DE PARIS
By:
---------------------------------
By: Title:
-------------------------------- ------------------------------
Title:
----------------------------- HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
Title: By:
----------------------------- ---------------------------------
Title:
------------------------------
6
<PAGE> 237
BANK OF MONTREAL BANQUE PARIBAS
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By: /s/ [unreadable signature]
-------------------------------- By:
---------------------------------
Title: General Manager
----------------------------- Title:
------------------------------
BANQUE NATIONALE DE PARIS By:
---------------------------------
Title:
By: ------------------------------
--------------------------------
Title:
----------------------------- HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
By:
Title: ---------------------------------
-----------------------------
Title:
------------------------------
6
<PAGE> 238
BANK OF MONTREAL BANQUE PARIBAS
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By:
---------------------------------
Title:
----------------------------- Title:
------------------------------
BANQUE NATIONALE DE PARIS By:
---------------------------------
Title:
By: /s/ JUDITH A. DOWLING ------------------------------
--------------------------------
Title: VP
----------------------------- HONG KONG AND SHANGHAI
BANKING CORPORATION
By: /s/ KATHERINE WOLFE
--------------------------------
Title: VP By:
----------------------------- ---------------------------------
Title:
------------------------------
6
<PAGE> 239
BANK OF MONTREAL BANQUE PARIBAS
By: By: /s/ [unreadable signature]
-------------------------------- ---------------------------------
Title: Title: Group V.P.
----------------------------- ------------------------------
By: /s/ [unreadable signature]
THE BANK OF NOVA SCOTIA ---------------------------------
Title: VP
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- -----------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By:
---------------------------------
Title:
----------------------------- Title:
-----------------------------
BANQUE NATIONALE DE PARIS By:
---------------------------------
Title:
By: -----------------------------
--------------------------------
Title:
----------------------------- HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
Title: By:
----------------------------- ---------------------------------
Title:
-----------------------------
6
<PAGE> 240
BANK OF MONTREAL BANQUE PARIBAS
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By: /s/ DEAN J. DECKER
-------------------------------- ---------------------------------
Title: Title: AVP
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By:
---------------------------------
Title:
----------------------------- Title:
------------------------------
BANQUE NATIONALE DE PARIS By:
---------------------------------
Title:
By: ------------------------------
--------------------------------
Title:
----------------------------- HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
Title: By:
----------------------------- ---------------------------------
Title:
------------------------------
6
<PAGE> 241
BANK OF MONTREAL BANQUE PARIBAS
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By: /s/ [unreadable signature]
---------------------------------
Title:
----------------------------- Title: Authorized Signatory
-------------------------------
BANQUE NATIONALE DE PARIS
HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
Title: By:
----------------------------- ---------------------------------
By: Title:
-------------------------------- ------------------------------
Title:
-----------------------------
6
<PAGE> 242
BANK OF MONTREAL BANQUE PARIBAS
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
By:
THE BANK OF NOVA SCOTIA ---------------------------------
Title:
------------------------------
By:
--------------------------------
Title: CIBC, INC.
-----------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
THE BANK OF TOKYO LIMITED CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By:
--------------------------------
By:
---------------------------------
Title:
----------------------------- Title:
------------------------------
BANQUE NATIONALE DE PARIS By:
---------------------------------
Title:
By: ------------------------------
--------------------------------
Title:
----------------------------- HONG KONG AND SHANGHAI
BANKING CORPORATION
By:
--------------------------------
Title: By: /s/ [unreadable signature]
----------------------------- ---------------------------------
Title: V.P.
------------------------------
6
<PAGE> 243
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY
By:
-------------------------------
By: /s/ CURT BIRIN Title:
------------------------------- ----------------------------
Title: VP
---------------------------- By:
-------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC ----------------------------
By: WESTDEUTSCHE LANDESBANK
------------------------------- GIROZENTRALE
Title:
----------------------------
By:
-------------------------------
ROYAL BANK OF CANADA Title:
----------------------------
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
SAN PAOLO BANK
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
7
<PAGE> 244
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY
By:
-------------------------------
By: Title:
------------------------------- ----------------------------
Title:
---------------------------- By:
-------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC ----------------------------
By: /s/ MICHAEL E. KEATING WESTDEUTSCHE LANDESBANK
------------------------------- GIROZENTRALE
Title: Vice President
----------------------------
By:
-------------------------------
ROYAL BANK OF CANADA Title:
----------------------------
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
SAN PAOLO BANK
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
7
<PAGE> 245
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY
By:
-------------------------------
By: Title:
------------------------------- ----------------------------
Title:
---------------------------- By:
-------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC ----------------------------
By: WESTDEUTSCHE LANDESBANK
------------------------------- GIROZENTRALE
Title:
----------------------------
By:
-------------------------------
ROYAL BANK OF CANADA Title:
----------------------------
By: /s/ BRIAN W. DIXON By:
------------------------------- -------------------------------
Title: Senior Manager Title:
---------------------------- ----------------------------
SAN PAOLO BANK
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
7
<PAGE> 246
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY
By:
-------------------------------
By: Title:
------------------------------- ----------------------------
Title:
---------------------------- By:
-------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC ----------------------------
By: WESTDEUTSCHE LANDESBANK
------------------------------- GIROZENTRALE
Title:
----------------------------
By:
-------------------------------
ROYAL BANK OF CANADA Title:
----------------------------
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
SAN PAOLO BANK
By: /s/ DONALD W. BROWN
-------------------------------
Title: Branch Manager
----------------------------
By: /s/ GLEN BINDER
-------------------------------
Title: Vice President
----------------------------
7
<PAGE> 247
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY
By: /s/ PETER S. HUMBER
-------------------------------
By: Title: Vice President
------------------------------- ----------------------------
Title:
---------------------------- By: /s/ THOMAS G. JACKSON
-------------------------------
Title: First Vice President
NATIONAL WESTMINSTER BANK PLC ----------------------------
By: WESTDEUTSCHE LANDESBANK
------------------------------- GIROZENTRALE
Title:
----------------------------
By:
-------------------------------
ROYAL BANK OF CANADA Title:
----------------------------
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
SAN PAOLO BANK
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
7
<PAGE> 248
THE LONG-TERM CREDIT BANK OF UNION BANK OF SWITZERLAND
JAPAN, LTD. LOS ANGELES
AGENCY
By:
-------------------------------
By: Title:
------------------------------- ----------------------------
Title:
---------------------------- By:
-------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC ----------------------------
By: WESTDEUTSCHE LANDESBANK
------------------------------- GIROZENTRALE
Title:
----------------------------
By: /s/ [unreadable signature]
-------------------------------
ROYAL BANK OF CANADA Title: V.P.
----------------------------
By: By: /s/ JAMES MALLEY
------------------------------- -------------------------------
Title: Title: Associate
---------------------------- ----------------------------
SAN PAOLO BANK
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
7
<PAGE> 249
THIRD AMENDMENT
TO STANDBY LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
THIS THIRD AMENDMENT TO STANDBY LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT (the "Amendment"), dated as of December 28, 1994, is entered into by
and among Morrison Knudsen Corporation, an Ohio corporation (the "Company"),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for itself and
the Banks (the "Agent"), and the several financial institutions party to the
Letter of Credit and Reimbursement Agreement (collectively, the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Standby Letter
of Credit and Reimbursement Agreement dated as of August 4, 1992 as amended by
that Waiver and Amendment to Credit Agreement dated as of December 22, 1992, as
further modified by that Waiver to Standby Letter of Credit and Reimbursement
Agreement dated as of August 6, 1993, as further modified by that Waiver to
Standby Letter of Credit and Reimbursement Agreement dated as of March 31,
1994, and as further modified and amended by that Waiver and Second Amendment
to Standby Letter of Credit and Reimbursement Agreement dated as of August 9,
1994 (as so amended and modified, the "Credit Agreement") pursuant to which
the Agent and the Banks have extended certain credit facilities to the Company
and certain of its subsidiaries and pursuant to which the Issuing Bank has
issued a letter of credit for the benefit of Metra and for the account of the
Company.
B. The Company has requested that the Banks amend Section 7.10 of
the Credit Agreement.
C. The Banks are willing to amend Section 7.10 of the Credit
Agreement, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein have the meanings assigned to them in the Credit Agreement.
1
<PAGE> 250
2. Amendment to Credit Agreement; Amendment to Section 7.10.
The date "January 1, 1992" in Section 7.10 of the Credit Agreement is changed
to "January 1, 1995".
3. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligations
of the Company, enforceable against it in accordance with its respective terms,
without defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Agent and the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of the
date (the "Effective Date") the Agent has received from the Company and the
Majority Banks a duly executed original or facsimile copy of this Amendment and
the Agent executes this Amendment, together with (i) a duly executed Guarantor
Acknowledgment and Consent in the form attached hereto (the "Consent"), and
(ii) a Third Amendment to Guaranty ("Guaranty Amendment") addressing matters
relating to the subject of this Amendment, duly executed by the Guarantor, the
Agent, and the Majority Banks (the Agent may rely upon any document delivered
to it in legible form by facsimile transmission); provided that each of the
following conditions precedent has been satisfied on or before such date:
(a) The Agent has received from the Company and the
Guarantor a copy of a resolution passed by the board of directors of each such
corporation, certified by the Secretary or an Assistant Secretary of such
corporation as being in full force and effect on the date hereof, authorizing
the execution, delivery and performance of this Amendment, the Consent, and the
Guaranty Amendment, respectively;
(b) All representations and warranties contained herein
are true and correct as of the Effective Date; and
2
<PAGE> 251
(c) The Agent has received from the Company (i) for each
Bank responding, by close of business on December 27, 1994, a non-refundable
fee equal to the product of .05% times such Bank's Commitment, and (ii) the
non-refundable sum agreed upon between the Company and the Agent in a letter
dated December 8, 1994 from the Agent to the Company for the account of the
Agent in connection with this Amendment.
5. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Banks of this Amendment,
shall not be deemed to create a course of dealing or otherwise obligate the
Agent or the Banks to forbear or execute similar amendments under the same or
similar circumstances in the future.
6. Miscellaneous.
(a) The Company hereby covenants and agrees to pay to the
Agent and the Banks on demand the fees described in Paragraph 4(c) of this
Amendment.
(b) All terms, covenants and provisions of the Credit
Agreement as amended by this Amendment are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Credit Agreement.
(c) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(d) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(e) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(f) This Amendment may not be amended except in
accordance with the provisions of Section 10.01 of the Credit Agreement.
(g) If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
3
<PAGE> 252
(h) Company covenants to pay to or reimburse the Agent,
upon demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
MORRISON KNUDSEN CORPORATION,
an Ohio corporation
By: /s/ DOUGLAS BRIGHAM
---------------------------------
Name: Douglas Brigham
Title: VP & Treasurer
By: /s/ MARK E. HOWLAND
---------------------------------
Name: Mark E. Howland
Title: VP & Controller
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ KEVIN LEADER
---------------------------------
Name: Kevin Leader
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ RICHARD J. CERF
---------------------------------
Name: Richard J. Cerf
Title: Vice President
4
<PAGE> 253
BANK OF MONTREAL
By: /s/ CECILY MISTARZ
---------------------------------
Name: Cecily Mistarz
Title: Senior Manager, Credit
THE BANK OF NOVA SCOTIA
By: /s/ M. VAN OTTERLOO
---------------------------------
Name: M. Van Otterloo
Title: Senior Relationship Manager
THE BANK OF TOKYO LIMITED
By: /s/ STANLEY A. LANCE
---------------------------------
Name: Stanley A. Lance
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ JUDITH A. DOWLING
---------------------------------
Name: Judith A. Dowling
Title: Vice President
By: /s/ RAFAEL C. LUMANLAN
----------------------------------
Name: Rafael C. Lumanlan
Title: Vice President
5
<PAGE> 254
BANQUE PARIBAS
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
CIBC, INC.
By: /s/ DAVID C. QUON
---------------------------------
Name: David C. Quon
Title: V.P.
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By: /s/ THIERRY F. VINCENT
---------------------------------
Name: Thierry F. Vincent
Title: Authorized Signatory
HONG KONG AND SHANGHAI BANKING
CORPORATION
By: /s/ G.J. Sprunt
---------------------------------
Name: G.J. Sprunt
Title: VP
6
<PAGE> 255
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By: /s/ MOTOKAZU UEMATSU
---------------------------------
Name: Motokazu Uematsu
Title: Deputy General Manager
NATIONAL WESTMINSTER BANK PLC
By: /s/ MICHAEL E. KEATING
---------------------------------
Name: Michael E. Keating
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ BRIAN W. DIXON
---------------------------------
Name: Brian W. Dixon
Title: Senior Manager
SAN PAOLO BANK
By: /s/ DONALD W. BROWN
---------------------------------
Name: Donald W. Brown
Title: Branch Manager
By: /s/ GLEN BINDER
---------------------------------
Name: Glen Binder
Title: Vice President
7
<PAGE> 256
UNION BANK OF SWITZERLAND
By: /s/ PETER S. HUMBER
---------------------------------
Name: Peter S. Humber
Title: Vice President
By: /s/ THOMAS G. JACKSON
---------------------------------
Name: Thomas G. Jackson
Title: First Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/
---------------------------------
Name:
Title: Vice President
By: /s/ E.K. HOURY
---------------------------------
Name: E.K. HOURY
Title: VP
8
<PAGE> 257
GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, Morrison Knudsen Corporation, a Delaware corporation
and a guarantor with respect to the Company's obligations to the Agent and the
Banks under the Credit Agreement hereby (i) acknowledges and consents to the
execution, delivery and performance by Company of the foregoing Third Amendment
to Letter of Credit and Reimbursement Agreement (the "Amendment"), and (ii)
reaffirms and agrees that the guaranty to which the undersigned is party and
all other documents and agreements executed and delivered by the undersigned to
the Agent and the Banks in connection with the Credit Agreement are in full
force and effect, without defense, offset or counterclaim. (Capitalized terms
used herein have the meanings specified in the Amendment.)
Dated: December 28, 1994
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
By: /s/ D. L. BRIGHAM
---------------------------------
Name: D. L. Brigham
Title: Vice President & Treasurer
By:
---------------------------------
Name:
Title:
9
<PAGE> 258
THIRD AMENDMENT TO GUARANTY
THIS THIRD AMENDMENT TO GUARANTY (the "Amendment"), dated as of
December 28, 1994, is entered into by and among Morrison Knudsen Corporation, a
Delaware corporation (the "Guarantor"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as agent for itself and the Banks (the "Agent"), and the
several financial institutions party to the Credit Agreement (collectively, the
"Banks").
RECITALS
A. Morrison Knudsen Corporation, an Ohio corporation (the
"Company"), Banks, and Agent are parties to a Standby Letter of Credit and
Reimbursement Agreement dated as of August 4, 1992 as amended by that Waiver
and Amendment to Credit Agreement dated as of December 22, 1992, as further
modified by that Waiver to Standby Letter of Credit and Reimbursement Agreement
dated as of August 6, 1993, as further modified by that Waiver to Standby
Letter of Credit and Reimbursement Agreement dated as of March 31, 1994, and as
further modified and amended by that Waiver and Second Amendment to Standby
Letter of Credit and Reimbursement Agreement dated as of August 9, 1994 (as so
amended and modified, the "Credit Agreement") pursuant to which the Agent and
the Banks have extended certain credit facilities to the Company and certain of
its subsidiaries and pursuant to which the Issuing Bank has issued a letter of
credit for the benefit of Metra and for the account of the Company. The
obligations of the Company under the Credit Agreement are unconditionally
guaranteed by the Guarantor pursuant to that Guaranty dated as of August 4,
1992, as amended by the Waiver and Amendment to Guaranty dated as of December
22, 1992, as modified by that Waiver to Guaranty dated as of August 6, 1993, as
further modified by that Waiver to Guaranty dated as of March 31, 1994, and as
further modified and amended by that Waiver and Second Amendment to Guaranty
dated as of August 9, 1994 (as so amended and modified, the "Guaranty").
B. The Guarantor has requested that the Banks amend Section
5.10 of the Guaranty as set forth in this Amendment.
C. The Banks are willing to amend Section 5.10 of the Guaranty,
subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned to them in the Credit
Agreement.
1
<PAGE> 259
2. Amendment to the Guaranty" Amendment to Section 5.10. The date
"January 1, 1992" in Section 5.10 of the Guaranty is changed to "January 1,
1995".
3. Representations and Warranties. The Guarantor hereby
represents and warrants to the Agent and the Banks as follows:
(a) Except as set forth above, no breach or default has
occurred and is continuing under the Guaranty.
(b) The execution, delivery and performance by the
Guarantor of this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any registration
with, consent or approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable. The Guaranty
constitutes the legal, valid and binding obligations of the Guarantor,
enforceable against it in accordance with its respective terms, without
defense, counterclaim or offset.
(c) All representations and warranties of the Guarantor
contained in the Guaranty are true and correct.
(d) The Guarantor is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Agent and the Banks or any other Person.
4. Effective Date. This Amendment will become effective on the
date (the "Effective Date"), the Agent has received from the Guarantor and the
Majority Banks a duly executed original or facsimile copy of this Amendment and
the Agent executes this Amendment, together with (i) a Third Amendment to
Standby Letter of Credit and Reimbursement Agreement ("Agreement Amendment")
addressing matters relating to the subject of this Amendment, duly executed by
the Company, the Agent, and the Majority Banks, and (ii) the Consent executed
by the Guarantor and required under the Agreement Amendment (the Agent may
rely upon any document delivered to it in legible form by facsimile
transmission); provided that each of the following conditions precedent has
been satisfied:
(a) The Agent has received from the Guarantor and the
Company a copy of a resolution passed by the board of directors of each such
corporation, certified by the Secretary or an Assistant Secretary of such
corporation as being in full force and effect on the date hereof, authorizing
the execution, delivery and performance of this Amendment, the Consent, and the
Agreement Amendment, respectively; and
2
<PAGE> 260
(b) All representations and warranties contained herein
are true and correct as of the Effective Date.
5. Reservation of Rights. The Guarantor acknowledges and agrees
that neither the Agent's nor the Banks' execution and delivery of this
Amendment, shall be deemed to create a course of dealing or otherwise obligate
the Agent or the Banks to forbear or execute similar amendments under the same
or similar circumstances in the future. The Guarantor hereby consents to the
execution, delivery and performance by the Company, the Agent and the Banks of
the Agreement Amendment and hereby reaffirms and agrees that the Guaranty is in
full force and effect, without defense, offset or counterclaim.
6. Miscellaneous.
(a) All terms, covenants and provisions of the Guaranty
as amended by this Amendment are and shall remain in full force and effect and
all references therein to such Guaranty shall henceforth refer to the Guaranty
as amended by this Amendment. This Amendment shall be deemed incorporated into,
and a part of, the Guaranty.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Guaranty, respectively.
IN WITNESS WHEREOF, the parties hereto have executed
3
<PAGE> 261
and delivered this Amendment as of the date first above written.
MORRISON KNUDSEN CORPORATION, BANK OF AMERICA NATIONAL
a Delaware corporation TRUST AND SAVINGS
ASSOCIATION, as Agent
By: /s/ DOUGLAS BRIGHAM By: /s/ KEVIN LEADER
---------------------------- ---------------------------
Name: Douglas Brigham Name: Kevin Leader
Title: VP & Treasurer Title: Vice President
By:
----------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST BANK OF MONTREAL
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ RICHARD J. CERF By: /s/ CECILY MISTARZ
---------------------------- ---------------------------
Name: Richard J. Cerf Name: Cecily Mistarz
Title: Vice President Title: Senior Manager, Credit
THE BANK OF NOVA SCOTIA THE BANK OF TOKYO LIMITED
By: /s/ M. VAN OTTERLOO By: /s/ STANLEY A. LANCE
---------------------------- ---------------------------
Name: M. Van Otterloo Name: Stanley A. Lance
Title: Senior Relationship Manager Title: Vice President
4
<PAGE> 262
BANQUE NATIONALE DE PARIS BANQUE PARIBAS
By: /s/ JUDITH A. DOWLING By:
---------------------------- -----------------------------
Name: Judith A. Dowling Name:
Title: Vice President Title:
By: /s/ RAFAEL C. LUMANLAN By:
---------------------------- -----------------------------
Name: Rafael C. Lumanlan Name:
Title: Vice President Title:
CIBC, INC. CREDIT LYONNAIS CAYMAN
ISLANDS BRANCH
By: /s/ DAVID C. QUON By: /s/ THIERRY F. VINCENT
---------------------------- -----------------------------
Name: David C. Quon Name: Thierry F. Vincent
Title: Vice President Title:
HONG KONG AND SHANGHAI THE LONG-TERM CREDIT BANK
BANKING CORPORATION OF JAPAN, LTD.,
LOS ANGELES AGENCY
By: /s/ G.J. SPRUNT By: /s/ MOTOKAZU UEMATSU
---------------------------- -----------------------------
Name: G.J. Sprunt Name: Motokazu Uematsu
Title: VP Title: Deputy General Manager
NATIONAL WESTMINSTER BANK PLC ROYAL BANK OF CANADA
By: /s/ MICHAEL KEATING By: /s/ BRIAN W. DIXON
---------------------------- -----------------------------
Name: Michael Keating Name: Brian W. Dixon
Title: Vice President Title: Senior Manager
5
<PAGE> 263
SAN PAOLO BANK UNION BANK OF SWITZERLAND
By: /s/ DONALD W. BROWN By: /s/ PETER S. HUMBER
---------------------------- -----------------------------
Name: Donald W. Brown Name: Peter S. Humber
Title: Branch Manager Title:
By: /s/ GLEN BINDER By: /s/ THOMAS G. JACKSON
---------------------------- -----------------------------
Name: Glen Binder Name: Thomas G. Jackson
Title: Vice President Title: First Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ [unreadable signature]
----------------------------
Name:
Title: VP
By: /s/ E. Khoury
----------------------------
Name: E. Khoury
Title: VP
6
