<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[xx] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from __________to__________
Commission file no. 0-016951
FIBREBOARD CORPORATION
(exact name of registrant as specified in charter)
Delaware 94-0751580
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(State or other jurisdiction of incorporation) (IRS Employer
Identification No.)
2200 Ross Ave., Suite 3600, Dallas, TX 75201
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(Address of principal executive offices)
(214) 954-9500
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(Registrant's telephone number, including area code)
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(Former name, former address or former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes /X/ No / /
As of the close of business on May 7, 1997, the registrant had outstanding
8,490,020 shares of common stock.
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FIBREBOARD CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The following unaudited financial statements are filed as part
of this report:
FINANCIAL STATEMENT TITLE PAGE
------------------------- ----
Consolidated Statements of Income for the three
months ended March 31, 1997 and 1996 3
Consolidated Balance Sheets as of March 31, 1997 and
December 31, 1996 4
Consolidated Statements of Cash Flows for the
three months ended March 31, 1997 and 1996 6
Notes to Consolidated Financial Statements 8
2
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FIBREBOARD CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(dollar amounts in thousands except per share)
(unaudited)
QUARTER ENDED MARCH 31
-----------------------
1997 1996
-------- -------
Net sales $115,929 $79,813
Cost of sales 81,219 57,595
-------- -------
Gross margin 34,710 22,218
Selling and administrative expenses 32,262 21,732
Goodwill amortization 1,144 770
-------- -------
Operating income (loss) 1,304 (284)
Interest expense (501) (622)
Interest and other income 1,315 284
-------- -------
Income (loss) from continuing operations
before income taxes 2,118 (622)
Income taxes relating to continuing operations (879) 248
-------- -------
Income (loss) from continuing operations 1,239 (374)
Income from discontinued operations,
net of tax -- 5,551
-------- -------
Net income $ 1,239 $ 5,177
-------- -------
-------- -------
Earnings per share:
Income (loss) from continuing operations $0.14 $(0.04)
Income from discontinued operations -- 0.62
-------- -------
Net income per share $0.14 $0.58
-------- -------
-------- -------
Common equivalent shares (thousands) 8,899 8,883
3
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FIBREBOARD CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(dollar amounts in thousands)
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(unaudited)
ASSETS
Current assets:
Cash and cash equivalents $ 22,970 $ 85,301
Receivables 66,025 62,216
Current portion of notes receivable 3,192 3,281
Inventories 73,821 66,321
Prepaid expenses 4,905 3,030
Deferred income taxes 12,066 12,656
--------- ---------
Total current assets 182,979 232,805
Property, plant and equipment, at cost:
Land and improvements 4,777 3,918
Buildings 27,814 24,136
Machinery and equipment 67,659 63,835
Construction in progress 18,529 11,228
--------- ---------
Accumulated depreciation (34,817) (32,200)
--------- ---------
Net property, plant and equipment 83,962 70,917
Notes receivable 4,062 4,129
Goodwill 129,618 129,171
Other assets 11,009 14,954
--------- ---------
Total operating assets 411,630 451,976
Cash restricted for asbestos costs 4,502 3,467
Asbestos costs to be reimbursed 174,333 233,402
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Total assets $ 590,465 $688,845
--------- ---------
--------- ---------
4
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FIBREBOARD CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(dollar amounts in thousands)
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable to banks $ 1,037 $ 44
Current portion of long-term debt 1,184 1,184
Accounts payable and accrued liabilities 50,985 88,907
Current portion of reserves 1,641 1,641
-------- --------
Total current liabilities 54,847 91,776
Long-term debt 27,932 27,847
Long-term reserves 13,883 13,947
Other long-term liabilities 6,032 6,837
Deferred income taxes 12,950 13,335
-------- --------
Total operating liabilities 115,644 153,742
Asbestos claims settlements 158,614 217,072
Long-term debt associated with asbestos 25,249 24,944
-------- --------
Total liabilities 299,507 395,758
Minority interest 184 190
COMMITMENTS AND CONTINGENCIES
Stockholders' equity:
Preferred stock, $.01 par value,
3,000,000 shares authorized; none issued -- --
Common stock, $.01 par value,
30,000,000 shares authorized; 8,730,399
shares issued 87 87
Additional paid-in capital 75,657 78,993
Retained earnings 222,508 221,269
Treasury stock, at cost, 240,379 and
274,565 shares (7,014) (7,161)
Foreign currency translation adjustment (464) (291)
-------- --------
Total stockholders' equity 290,774 292,897
-------- --------
Total liabilities and stockholders' equity $590,465 $688,845
-------- --------
-------- --------
5
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FIBREBOARD CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollar amounts in thousands)
(unaudited)
THREE MONTHS ENDED MARCH 31
---------------------------
1997 1996
--------- ---------
Cash flows from operating activities:
Net income $ 1,239 $ 5,177
Adjustments to reconcile income to
net cash used by continuing
operating activities:
Income of discontinued operations -- (5,551)
Depreciation and amortization 3,519 3,306
Deferred income taxes 58 (10)
Deferred long-term benefits (686) (129)
Compensation for stock grants 341 107
Change in reserves (64) (101)
Income applicable to minority interest (7) 6
Gain on sale of assets (616) --
Change in working capital (47,615) (3,995)
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Net cash used by continuing operations (43,831) (1,190)
Discontinued operations:
Income of discontinued operations -- 5,551
Depreciation and amortization -- 4,290
Net asset change -- 3,142
-------- --------
Net cash provided by discontinued operations -- 12,983
Cash flows from investing activities:
Non-cash net assets of acquired operations (9,684) (5,014)
Proceeds from asset sales 1,043 --
Property, plant and equipment changes (10,909) (2,363)
Reduction in notes receivable 158 4,669
Decrease in other assets 3,545 (66)
-------- --------
Net cash used by investing activities (15,847) (2,774)
Cash flows from financing activities:
New borrowings 1,078 26,760
Repayment of debt -- (6,450)
Purchase of treasury stock (3,761) --
Employee stock plan transactions 192 110
-------- --------
Net cash provided (used) by financing
activities (2,491) 20,420
Net cash provided (used) by business
activities $(62,169) $ 29,439
6
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FIBREBOARD CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(dollar amounts in thousands)
(unaudited)
THREE MONTHS ENDED MARCH 31
---------------------------
1997 1996
------ ------
Cash flows from asbestos-related activities:
Receipts from insurers $ 773 $ 1,247
Structured settlement program activity 161 (124)
Other asbestos-related cash transactions (61) (504)
Change in cash restricted for asbestos costs (1,035) (1,002)
-------- -------
Net cash used by asbestos-related
activities (162) (383)
-------- -------
Net increase (decrease) in cash (62,331) 29,056
Cash at beginning of period 85,301 12,382
-------- -------
Cash at end of period $ 22,970 $41,438
-------- -------
-------- -------
Cash paid during the period for:
Interest $ 438 $ 535
Income taxes 23,384 471
Non-cash items:
Increase in asbestos claims settlements 22,845 12,729
Payments made to asbestos claimants on
Fibreboard's behalf 81,464 17,176
7
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FIBREBOARD CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands)
(unaudited)
1. The interim financial statements included herein have been prepared,
without audit, pursuant to the rules and regulations of the Securities and
Exchange Commission. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to
such rules and regulations, although Fibreboard management believes that
the disclosures are adequate to make the information presented not
misleading. These interim financial statements and notes should be read in
conjunction with the financial statements and the notes thereto included in
Fibreboard's 1996 Annual Report and Form 10-K.
Interim financial statements are by necessity somewhat tentative.
Judgments are used to estimate the amounts recorded each quarter for items
that are normally determinable only on an annual basis. For example,
numerous items relating to employee benefits are determined annually, with
hours worked determining pension plan contributions for the year,
eligibility for vacations, etc. Further, all inventory quantities are
verified by physically counting the units on hand at least once a year.
For those inventories not counted at the end of the quarter, quantities are
determined using measured sales and production data for the period.
The interim period financial information included herein reflects all
adjustments of a normal and recurring nature which are, in the opinion of
Fibreboard management, necessary for a fair presentation of the results of
the respective interim periods. Results of operations for interim periods
are not necessarily indicative of results to be expected for an entire
year.
2. Net earnings per common and common equivalent shares were calculated
using the weighted average number of common shares outstanding during the
period plus the net additional number of shares which would be issuable
upon the exercise of stock options, assuming Fibreboard used the proceeds
received to purchase additional shares at market value. Fibreboard will
adopt Statement of Financial Accounting Standards No. 128, Earnings per
Share (SFAS 128), effective December 15, 1997. SFAS 128 requires the
calculation of basic earnings per share which is computed by dividing net
income by the weighted average number of shares of common stock outstanding
during the period and diluted earnings per common share which is computed
using the weighted average number of shares of common stock and common
stock equivalents. As required, Fibreboard will report earnings per share
in accordance with SFAS 128. Pro forma basic earnings per share from
continuing operations for the three months ended March 31, 1997 and 1996
would have been $0.15 and $(0.04). Pro forma diluted earnings per share
from continuing operations for the three months ended March 31, 1997 and
1996 would have been $0.14 and $(0.04).
3. Inventories are valued at the lower of cost (first in, first out) or
market. Inventory costs include material, labor and operating overhead.
Operating supplies are priced at average cost. Inventories were as follows:
March 31, 1997 December 31, 1996
-------------- -----------------
Finished Goods $60,247 $54,447
Raw Materials 10,343 9,115
Supplies 3,231 2,759
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Total Inventories $73,821 $66,321
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------- -------
8
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FIBREBOARD CORPORATION AND SUBSIDIARIES
4. The functional currency of Fibreboard's foreign operations is the
applicable local currency. Translation from the applicable foreign
currency to U. S. dollars is performed for balance sheet accounts using
exchange rates in effect at the balance sheet date and for sales and
expense accounts using a weighted average exchange rate during the period.
The resulting translation adjustment is reflected as a component of
stockholder's equity.
Realized translation losses were $237 and $354 for the three months ended
March 31, 1997 and 1996. To mitigate future translation gains or losses on
U. S. denominated debt held by a Canadian subsidiary, Fibreboard entered
into a foreign currency swap during 1996 under which Fibreboard will receive
U.S. $25,000 in exchange for Canadian $34,290 upon contract termination in
August 1998. Gains or losses due to currency exchange fluctuations during
the contract period are deferred.
The Canadian subsidiary also enters into forward exchange and purchased
foreign currency option contracts in an effort to mitigate fluctuations
in transactions denominated in U.S. dollars. The gains or losses on
these contracts are included in income in the period in which the
exchange rates change. No contracts of this type were entered into
during 1996, and the gains and losses recorded on such contracts
during 1997 were not material.
5. Information about Fibreboard's industry segments is set forth below:
QUARTER ENDED MARCH 31
----------------------------
1997 1996
-------- ---------
OUTSIDE SALES
Building Products:
Residential $101,715 $ 64,561
Industrial 14,214 15,252
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Total Operations $115,929 $ 79,813
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OPERATING PROFIT
Building Products:
Residential $ 2,424 $ 317
Industrial 1,588 1,697
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Total Operations 4,012 2,014
Unallocated expense, net (2,708) (2,298)
Interest expense (501) (622)
Interest and other income 1,315 284
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Income (loss) from continuing
operations before income taxes $ 2,118 $ (622)
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6. In March 1997, Fibreboard increased its U. S. revolving credit facility
from $125,000 to $225,000. At March 31, 1997, $234,400 was available
for borrowing under the U. S. and Canadian revolving credit facilities.
7. On January 1, 1997, Fibreboard acquired the Florida-based net assets of
Gentek Building Products, including ten building product distribution sites
and two manufacturing plants that fabricate aluminum windows and doors, for
$11,816 in cash including the assumption of certain liabilities. The
acquisition was accounted for as a purchase.
8. Prior to 1972, Fibreboard manufactured insulation products containing
asbestos. Fibreboard has since been named as a defendant in many thousands
of personal injury claims for injuries allegedly
9
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FIBREBOARD CORPORATION AND SUBSIDIARIES
caused by asbestos exposure and in asbestos-in-buildings actions involving
many thousands of buildings.
Fibreboard has unique insurance coverage for personal injury claims.
During 1993, Fibreboard and its insurers, Continental Casualty Company
(Continental) and Pacific Indemnity Company (Pacific), entered into the
Insurance Settlement Agreement, and Fibreboard, its insurers and plaintiffs
representatives entered into the Global Settlement Agreement. These
agreements are interrelated and require final court approval. On July 26,
1996, the U. S. Fifth Circuit Court of Appeals affirmed the Global
Settlement by a majority decision and the Insurance Settlement by an
unanimous decision.
A petition for rehearing on the Global Settlement was filed with the Fifth
Circuit in September 1996 and subsequently rejected by the Court. The
parties opposing the Global Settlement have filed petitions seeking review
with the U. S. Supreme Court. The Supreme Court will likely rule whether
to grant these petitions during 1997. If granted, final resolution of
the Global Settlement may not be known until 1998 or later.
On October 24, 1996, the statutory time period to seek further review of
the Insurance Settlement approval judgment lapsed with no petition for
review having been filed with the U. S. Supreme Court. Therefore, the
Insurance Settlement approval judgment is now final and not subject to
further appeal.
Fibreboard will continue to seek approval of the Global Settlement. Under
the Global Settlement, all asbestos-related personal injury liabilities of
Fibreboard will be resolved through insurance funds and existing corporate
reserves. Upon final approval, Fibreboard's insurers are required to pay
existing settlements and assume full responsibility for any claims filed
before August 27, 1993, the date the settling parties reached agreement on
the terms of the Global Settlement. A court-supervised claims processing
trust has already been established to administer the $1,535,000 dedicated
to resolving claims filed against Fibreboard since August 27, 1993, and any
further claims that might otherwise be asserted in the future.
Fibreboard will contribute $10,000 plus accrued interest toward the
settlement trust, which it will obtain from other remaining insurance
sources and existing reserves. The Home Insurance Company has already paid
$9,892 into the escrow account on behalf of Fibreboard, in satisfaction of
an earlier settlement agreement. At December 31, 1996, Fibreboard owed the
escrow account $224.
The remainder of the trust will be funded by Continental and Pacific.
These insurers have placed $1,525,000 in an interest-bearing escrow account
pending court approval of the settlements. The balance of the escrow
account was $1,697,815 at December 31, 1996, after payment of interim
expenses associated with the Global Settlement. A permanent injunction
barring the filing of any further claims against Fibreboard or its insurers
is included as part of the Global Settlement.
The Insurance Settlement, which is now final, is structured as an
alternative solution in the event the Global Settlement fails to receive
final approval. Under the Insurance Settlement, Continental and Pacific
will pay in full settlements reached as of August 27, 1993 and provide
Fibreboard with up to $2,000,000, plus accrued interest, in additional
funds as needed to resolve unsettled claims as of August 27, 1993 and
claims which have been or may be filed against Fibreboard after that date.
Under the Insurance Settlement, Fibreboard will continue to manage the
defense and resolution of asbestos-related personal injury claims.
The Insurance Settlement will not be fully implemented or funded until such
time as the Global Settlement has been finally resolved. In the event the
Global Settlement is finally approved, the
10
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FIBREBOARD CORPORATION AND SUBSIDIARIES
Insurance Settlement will not be implemented. If, however, the Global
Settlement is not approved, then the Insurance Settlement will be
implemented. However, the insurers began paying deferred settlement
obligations in the fourth quarter of 1996.
Fibreboard believes the amounts available under the Insurance Settlement
Agreement will be adequate to fund the ongoing defense and indemnity costs
associated with asbestos-related personal injury claims for the foreseeable
future.
The following tables illustrate asbestos-related personal injury claims
activity for the periods indicated:
THREE MONTHS ENDED MARCH 31
---------------------------
1997 1996
------- -------
PERSONAL INJURY
New claims received 12,896 2,516
Claims disposed:
Settled 1,031 390
Dismissed 94 539
"Green card" settlements(1) -- 1
Judgments -- --
Adjustments(2) 13 29
Average settlement amount per claim settled:
Quarter(3) $ 29 $ 21
Cumulative 12 11
Claims pending at end of period 90,241 49,619
1 Under Green Card Settlements, there is no determination of liability
by Fibreboard to a claimant. Instead, Fibreboard waives the statute
of limitations should a claimant develop an asbestos-related
impairment in the future.
2 Often, multiple claims are filed for the same injury. In addition,
Fibreboard's claims database was constructed by merging several
third-party databases in 1988. Fibreboard has attempted to identify
duplicate claims and remove them from the database. It is often not
possible to fully identify duplicate claims until the claims are
prepared for trial. Fibreboard anticipates additional future
adjustments.
3 The higher settlement average in 1996 and 1997 is due to the absence
of group settlements, where large numbers of low value cases are
traditionally settled along with more valuable cases, and due to the
fact that in 1996 and 1997 a relatively small number of individual
cases involving more seriously injured plaintiffs were settled during
the pendency of the Global Settlement injunction
------------------------------------------------------------------------
At the end of 1991, Fibreboard attempted to quantify its liability for
asbestos-related personal injury claims then pending as well as anticipated
to be received through the end of the decade. There are many opportunities
for error in such an exercise. Assumptions concerning the number of claims
to be received, the disease mix of pending and future claims and
projections of defense and indemnity costs may or may not prove correct.
Fibreboard's assumptions were based on its historical experience, modified
as appropriate for anticipated demographic changes or changes in the
litigation environment.
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FIBREBOARD CORPORATION AND SUBSIDIARIES
Notwithstanding the inherent risk of significant error in such a
calculation, Fibreboard estimated that the amount necessary to defend and
dispose of asbestos-related personal injury claims pending at December 31,
1991, and anticipated through the end of the decade plus the costs of
prosecuting its insurance coverage litigation would aggregate $1,610,000.
Because of the dynamic nature of this litigation, it is more difficult to
estimate how many personal injury claims will be received after 1999 as
well as the costs of defending and disposing of those future claims.
Consequently, Fibreboard's estimated liability contains no amounts for
personal injury claims received after the end of the decade, although it is
likely additional claims will be received thereafter.
Fibreboard believed it probable that it would ultimately receive insurance
proceeds of $1,584,000 for the defense and disposition of the claims
quantified above. As a result, Fibreboard recorded a liability, net of
anticipated insurance proceeds, of $26,000 at December 31, 1991,
representing its best estimate of the unreimbursed cost of resolving
personal injury claims then pending and anticipated through the remainder
of the decade as well as the costs of prosecuting the insurance coverage
litigation. Although there likely will be claims filed beyond the end of
the decade, these have not been estimated.
Although Fibreboard, its insurers and plaintiffs' representatives entered
into the Insurance and Global Settlements discussed above, Fibreboard does
not believe these settlements impact its estimate of liability through the
end of the decade. However, during 1995, Fibreboard recorded a $4,000
reversal of previously established reserves for anticipated unreimbursable
costs as a result of a reduction in its estimate of the amounts which will
be needed for such purpose in the event neither the Global nor Insurance
Settlements are finally approved. Fibreboard anticipates reevaluating and
updating its estimates of liability once it is determined which of the
Global Settlement or the Insurance Settlement is ultimately implemented.
9. Subsequent Event
On May 5, 1997, Fibreboard completed the purchase of the stock of Fabwel,
Inc. for approximately $120 million, subject to post closing adjustments.
Fabwel, headquartered in Elkhart, Indiana, is a major producer and supplier
of customized exterior components for the manufactured housing,
recreational vehicle, building and construction and transportation/cargo
industries. Fabwel reported net sales of $194.2 million for the year ended
December 31, 1996, pre-tax income of $11.0 million, earnings before
interest and taxes of $13.9 million, and earnings before interest, taxes,
depreciation and amortization of $17.0 million. The purchase was
funded by $100.0 million from Fibreboard's existing revolving credit
facility and cash on hand. The acquisition will be accounted for as
a purchase.
12
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FIBREBOARD CORPORATION AND SUBSIDIARIES
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
QUARTER ENDED MARCH 31, 1997 VS. 1996
OVERALL
-------
- Net sales increased 45% due to the acquisition of Stone Products
(acquired July 1996), additional Norandex branches and increased
shipments of residential building products.
- Gross margin increased 56%, and increased as a percent of sales from
28% in 1996 to 30% in 1997. Lower raw material costs and operating
efficiencies in the residential building products group resulted in
improved consolidated gross margin while stable raw material costs
(relative to sales prices) were experienced for industrial building
products.
- Selling, general and administrative costs increased 48% due to the
increase in the number of Norandex branches since the prior year, and
the acquisition of Stone Products.
- Goodwill amortization increased 49% between years as a result of the
acquisition of Stone Products.
- As a result of the factors noted above, operating income increased
$1.6 million between years.
- Interest expense declined 19% as a result of decreased debt balances
combined with the expiration of an interest rate cap during the
fourth quarter of 1996.
- Interest and other income increased $1.0 million as average cash
balances were higher, and gains on sales of surplus assets
totaled $0.6 million in 1997.
- The income tax rate was 41.5% for 1997 and 40% for 1996.
- Income from continuing operations increased $1.6 million as a result
of the above factors.
- Net income for the first quarter of 1996 included the operating
results of the resort operations which were sold during the fourth
quarter of 1996.
SEGMENT DISCUSSION
------------------
BUILDING PRODUCTS:
Residential products sales increased 58% due to the acquisition of
Stone Products, new Norandex branches added during the past year, and
increased shipment of vinyl products. Stone Products contributed
$12.4 and $1.3 million of sales and operating income in 1997. Had
Stone Products been acquired at the beginning of 1996, it would have
contributed $9.3 million of pro forma sales for the first quarter
of 1996. Because of the limited nature of pro forma adjustments,
Fibreboard does not believe pro forma comparisons of operating results
between periods are indicative of the results that would have occurred
if the combination had been in effect throughout 1996 or which
may be obtained in the future. Norandex branch same store sales
increased 15% between comparable quarters of 1996 and 1997.
Shipments of vinyl siding increased 42% from 585,000 squares in
1996 to 830,000 squares in 1997 as a
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FIBREBOARD CORPORATION AND SUBSIDIARIES
result of a 48% increase in shipments by Norandex and a 34%
increase in shipments by Vytec. Operating profit increased 665%
from $0.3 million in 1996 to $2.4 million. The improvement in
operating profits was due to the acquisitions of Stone Products,
increased sales volumes at Norandex and Vytec and higher
manufacturing efficiencies during 1997.
- Industrial products sales decreased 7% as a result of decreased sales
of calcium silicate ("CalSil") products. Operating profits declined
6% due primarily to the volume declines of CalSil sales.
UNALLOCATED EXPENSE:
- Unallocated expenses increased 18% or $0.4 million between years.
FINANCIAL CONDITION
- Cash on hand at March 31, 1997 aggregated $23.0 million, which will be
utilized to fund continuing operations and the acquisition of Fabwel,
Inc.
- Borrowings under Fibreboard's revolving credit facilities aggregated
$1.0 million at March 31, 1997. Total availability was $234.4
million. In addition, Fibreboard had $25.0 million outstanding in the
form of a five-year term loan.
- Including Fabwel, capital expenditures of between $33 to $38 million
are anticipated during 1997. Major anticipated projects include the
construction of a vinyl siding manufacturing plant in Joplin, Missouri
at an approximate total cost of $15.0 million (completed on April
14, 1997), $6.0 million to increase production capacity and improve
productivity at the vinyl siding manufacturing plants in London,
Ontario and Claremont, North Carolina, and approximately $6.0 million
for expansion of Stone Products production facilities. For the first
three months of 1997, Fibreboard has expended approximately $10.9
million on these and other projects.
- In addition to cash needs related to continuing operations, Fibreboard
must fund its minimal on-going asbestos-related costs. To date,
substantially all such costs, other than the cost of litigating
insurance coverage issues and certain in-house expenses, have been
funded from insurance resources. At March 31, 1997, Fibreboard had
$4.5 million in cash on hand restricted for asbestos-related costs.
Fibreboard believes that substantially all of its cash needs for
asbestos-related expenditures will be satisfied through existing
settlements with asbestos-in-buildings insurers or through the
Insurance Settlement which became final on October 24, 1996.
- Additional information regarding the asbestos-related litigation can
be found in Note 8 to the Consolidated Financial Statements beginning
on page 10.
14
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FIBREBOARD CORPORATION AND SUBSIDIARIES
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Material developments in the asbestos-related litigation are described
in Note 8 to the Consolidated Financial Statements beginning on page
10.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed as part of this Form 10-Q:
10.27.1 Second Amendment to the Revolving Credit Agreement
between The Bank of Nova Scotia and Vytec
Corporation as Borrower date March 26, 1997.
10.38 Fourth Amended and Restated Credit Agreement dated
March 28, 1997 among Fibreboard Corporation as the
Revolving Borrower, Vytec Corporation as the Term
Borrower, and certain Commercial Lending
Institutions as the Lenders, and Bank of America
National Trust and Savings Association as the
Administrative co-agent for the Lenders, and
NationsBank N.A. as the Documentation co-agent for
the Lenders.
(b) No Current Reports on Form 8-K were filed during the period
January 1, 1997 to March 31, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FIBREBOARD CORPORATION
----------------------
(Registrant)
Dated: May 15, 1997 By: /s/ Garold E. Swan
--------------------
Garold E. Swan
Vice President, Finance
15
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SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
Between
The Bank of Nova Scotia as Bank
and
Vytec Corporation as Borrower
""Applicable Margin" means
(a) for each calendar quarter for which the Consolidated Funded Debt to
Cash Flow Ratio is less than 1.00 to 1.00:
(i) 0.35% per annum for the purposes of Section 7.01(c) and 7.08;
(ii) nil for the purposes of Section 7.05; and
(iii) 0.125% per annum for the purposes of Section 7.07;
(b) for each calendar quarter for which the Consolidated Funded Debt to
Cash Flow Ratio is greater than or equal to 1.00 to 1.00 but less than
1.50 to 1.00:
(i) 0.40% per annum for the purposes of Section 7.01(c) and 7.08;
(ii) nil for the purposes of Section 7.05; and
(iii) 0.150% per annum for the purposes of Section 7.07;
(c) for each calendar quarter for which the Consolidated Funded Debt to
Cash Flow Ratio is greater than or equal to 1.50 to 1.00 but less than
2.00 to 1.00:
(i) 0.50% per annum for the purposes of Section 7.01(c) and 7.08;
(ii) nil for the purposes of Section 7.05; and
(iii) 0.175% per annum for the purposes of Section 7.07;
(d) for each calendar quarter for which the Consolidated Funded Debt to
Cash Flow Ratio is greater than or equal to 2.00 to 1.00 but less than
2.50 to 1.00:
(i) 0.625% per annum for the purposes of Section 7.01(c) and 7.08;
(ii) nil for the purposes of Section 7.05; and
(iii) 0.20% per annum for the purposes of Section 7.07; and
(e) for each calendar quarter for which the Consolidated Funded Debt to
Cash Flow Ratio is greater than or equal to 2.50 to 1.00:
(i) 0.875% per annum for the purposes of Section 7.01(c);
(ii) nil for the purposes of Section 7.08; and
(iii) 0.25% per annum for the purposes of Section 7.05 and 7.07.".
Dated the 26th Day of March, 1997
<PAGE>
EXECUTION COPY
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT,
dated as of March 28, 1997
among
FIBREBOARD CORPORATION,
as the Revolving Borrower,
VYTEC CORPORATION,
as the Term Borrower
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as the Administrative Co-Agent for the Lenders
and
NATIONSBANK N.A.
as the Documentation Co-Agent for the Lenders
||
<PAGE>
TABLE OF CONTENTS
<TABLE>
PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions................................................ 2
1.2 Use of Defined Terms....................................... 30
1.3 Cross-References........................................... 30
1.4 Accounting and Financial Determinations.................... 30
ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1 Commitments................................................ 32
2.1.1 Revolving Loan Commitment.................................. 32
2.1.2 Commitment to Issue Letters of Credit...................... 32
2.1.3 Lenders Not Permitted or Required To Make
Revolving Loans or Issue or Participate in Letters of
Credit Under Certain Circumstances........................ 32
2.1.4 Extension of Commitment Termination
Dates and Stated Maturity Date............................ 33
2.2 Mandatory and Optional Reductions of Revolving
Commitment Amounts........................................ 34
2.2.1 Mandatory Reductions....................................... 34
2.2.2 Optional Reductions........................................ 34
2.3 Procedure for Committed Borrowings......................... 34
2.4 Continuation and Conversion Elections...................... 35
2.5 Bid Borrowings............................................. 36
2.6 Procedure for Bid Borrowing................................ 36
2.7 Swingline Loans............................................ 40
2.8 Funding.................................................... 43
2.9 Notes...................................................... 44
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1 Repayments and Prepayments................................. 44
3.2 Interest Provisions........................................ 46
3.2.1 Rates...................................................... 46
3.2.2 Post-Default Rate.......................................... 49
3.2.3 Payment Dates.............................................. 49
SECTION 3.2.4 Interest Rate (Canada)............................... 50
3.3 Fees....................................................... 50
3.3.1 Commitment Fees............................................ 50
3.3.2 Participation Fees......................................... 51
3.3.3 [Reserved]................................................. 51
3.3.4 Co-Agent's Fees............................................ 51
3.3.5 Letter of Credit Face Amount Fee........................... 52
3.3.6 Letter of Credit Issuing Fee............................... 53
ARTICLE IV LETTERS OF CREDIT
4.1 Issuance Requests.......................................... 53
4.2 Issuances and Extensions................................... 54
<PAGE>
4.3 Expenses................................................... 55
4.4 Other Lenders' Participation............................... 55
4.5 Disbursements.............................................. 57
4.6 Reimbursement.............................................. 57
4.7 Deemed Disbursements....................................... 58
4.8 Nature of Reimbursement Obligations........................ 58
4.9 Indemnity.................................................. 59
4.10 Conflicts With Letter of Credit Related Documents.......... 60
ARTICLE V CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
5.1 Eurodollar Rate Lending Unlawful........................... 60
5.2 Deposits Unavailable....................................... 60
5.3 Increased Eurodollar Loan Costs, etc....................... 61
5.4 Funding Losses............................................. 61
5.5 Increased Capital Costs.................................... 62
5.6 Taxes...................................................... 62
5.7 Payments, Computations, etc................................ 64
5.8 Sharing of Payments........................................ 64
5.9 Set-off.................................................... 65
5.10 Use of Proceeds............................................ 66
5.11 Other Increased Costs...................................... 66
5.12 Obligation to Mitigate; Substitution of Lenders............ 67
5.13 Certain Restatement Effective Date Transitional Matters.... 68
ARTICLE VI CONDITIONS PRECEDENT
6.1 Conditions to Restatement Effective Date................... 69
6.1.1 Agreement.................................................. 69
6.1.2 Resolutions, etc........................................... 69
6.1.3 Delivery of Notes.......................................... 69
6.1.4 Guarantees................................................. 70
6.1.5 Opinions of Counsel........................................ 70
6.1.6 Solvency, Valuation, Etc................................... 70
6.1.7 Purchase of Loans, Closing Fees, Expenses, etc............. 70
6.1.8 Auditors Opinion........................................... 71
6.2 Conditions to All Credit Extensions........................ 71
6.2.1 Compliance with Warranties, No Default, etc................ 71
6.2.2 Credit Request............................................. 72
6.2.3 Satisfactory Legal Form.................................... 72
6.3 Notice of Restatement Effective Date....................... 72
6.4 Failure to Reach Restatement Effective Date................ 72
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ARTICLE VII REPRESENTATIONS AND WARRANTIES
7.1 Organization, etc.......................................... 73
7.2 Due Authorization, Non-Contravention etc................... 73
7.3 Government Approval, Regulation, etc....................... 73
7.4 Validity, etc.............................................. 74
7.5 Financial Information...................................... 74
7.6 No Material Adverse Change................................. 74
7.7 Litigation, Labor Controversies, etc....................... 74
7.8 Subsidiaries............................................... 75
7.9 Ownership of Properties.................................... 75
7.10 Taxes...................................................... 75
7.11 Pension and Welfare Plans.................................. 75
7.12 Environmental Warranties................................... 76
7.13 Regulations G, U and X..................................... 77
7.14 Accuracy of Information.................................... 77
7.15 Compliance of Laws......................................... 77
7.16 Absence of Default......................................... 78
7.17 Financial Condition........................................ 78
7.18 Settlement Agreements...................................... 78
7.19 Subsidiaries and Obligors.................................. 79
ARTICLE VIII COVENANTS
8.1 Affirmative Covenants...................................... 79
8.1.1 Financial Information, Reports, Notices, etc............... 79
8.1.2 Compliance with Laws, etc.................................. 81
8.1.3 Maintenance of Properties and Existing Lines of
Business.................................................. 82
8.1.4 Insurance.................................................. 82
8.1.5 Books and Records.......................................... 82
8.1.6 Environmental Covenant..................................... 83
8.1.7 New Significant Subsidiaries............................... 83
8.2 Negative Covenants......................................... 83
8.2.1 Business Activities........................................ 84
8.2.2 Indebtedness............................................... 84
8.2.3 Liens...................................................... 85
8.2.4 Financial Condition........................................ 88
8.2.5 Approved Acquisitions and other Investments................ 88
8.2.6 Restricted Payments, etc................................... 90
8.2.7 Consolidation, Merger, etc................................. 91
8.2.8 Asset Dispositions, etc.................................... 91
8.2.9 Modification of Certain Agreements......................... 92
8.2.10 Transactions with Affiliates............................... 93
8.2.11 Negative Pledges, Restrictive Agreements, etc.............. 93
8.2.12 Fiscal Year of Borrowers................................... 93
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<PAGE>
ARTICLE IX EVENTS OF DEFAULT
9.1 Listing of Events of Default............................... 93
9.1.1 Non-Payment of Obligations................................. 94
9.1.2 Breach of Warranty......................................... 94
9.1.3 Non-Performance of Certain Covenants and Obligations....... 94
9.1.4 Non-Performance of Other Covenants and Obligations......... 94
9.1.5 Default on Other Indebtedness or Settlement Obligations.... 94
9.1.6 Judgments.................................................. 95
9.1.7 Pension Plans.............................................. 95
9.1.8 Control of the Borrower.................................... 95
9.1.9 Bankruptcy, Insolvency, etc................................ 95
9.1.10 Impairment of Loan Documents, etc.......................... 96
9.1.11 Asbestos Litigation Payments............................... 96
9.1.12 Asbestos Qualification..................................... 97
9.2 Action if Bankruptcy....................................... 97
9.3 Action if Other Event of Default........................... 97
ARTICLE X THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization.............................. 98
10.2 Delegation of Duties....................................... 98
10.3 Liability of Administrative Agent and Issuers.............. 98
10.4 Reliance by Administrative Agent........................... 99
10.5 Notice of Default.......................................... 99
10.6 Credit Decision............................................ 100
10.7 Indemnification............................................ 100
10.8 Administrative Agent in Individual Capacity................ 101
10.9 Successor Administrative Agent............................. 102
10.10 Collateral Matters......................................... 102
10.11 Funding Reliance, etc...................................... 103
10.12 Copies, etc................................................ 104
10.13 Co-Agents.................................................. 104
Section 10.14. Limitations on Interest.............................. 104
ARTICLE XI MISCELLANEOUS PROVISIONS
11.1 Waivers, Amendments, etc................................... 107
11.2 Notices.................................................... 108
11.3 Payment of Costs and Expenses.............................. 108
11.4 Indemnification............................................ 109
11.5 Survival................................................... 110
11.6 Severability............................................... 111
11.7 Headings................................................... 111
11.8 Execution in Counterparts, Effectiveness, etc.............. 111
11.9 Governing Law; Entire Agreement............................ 111
11.10 Successors and Assigns..................................... 111
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<PAGE>
11.11 Sale and Transfer of Loans and Notes;
Participations in Loans and Notes......................... 112
11.11.1 Assignments................................................ 112
11.11.2 Participations............................................. 113
11.12 Other Transactions......................................... 114
11.13 Forum Selection and Consent to Jurisdiction................ 114
11.14 Waiver of Jury Trial....................................... 115
11.15 Confidentiality............................................ 115
11.16 Transition Provisions...................................... 116
</TABLE>
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<PAGE>
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Bank Percentages
SCHEDULE III - Guaranteed Facility Indebtedness
SCHEDULE IV - Letters of Credit
EXHIBIT A-1 - Form of Fourth Amended and Restated Revolving Note
EXHIBIT A-2 - Form of Amended and Restated Term Note
EXHIBIT B - Form of Revolving Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E-1 - Form of Opinion of Borrower's Counsel
EXHIBIT E-2 - Form of Opinion of Borrower's Canadian Counsel
EXHIBIT F - Form of Opinion of Administrative Agent's Counsel
EXHIBIT G - Form of Solvency Certificate
EXHIBIT H - Form of Guaranty
EXHIBIT I-1 - Form of Confirmation of Guaranty
EXHIBIT I-2 - Form of Confirmation of Fibreboard Guaranty
EXHIBIT J - List of Settlement Agreements
EXHIBIT K - Borrower's Cash Management Policy
EXHIBIT L - Form of Invitation for Competitive Bids
EXHIBIT M - Form of Competitive Bid Request
EXHIBIT N - Form of Competitive Bid
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<PAGE>
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 28,
1997 is among FIBREBOARD CORPORATION, a Delaware corporation (the "REVOLVING
BORROWER"), VYTEC CORPORATION, a corporation organized under the laws of the
province of Ontario, Canada (the "TERM BORROWER"), the various financial
institutions which are or may become parties hereto (collectively, the
"LENDERS"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
administrative co-agent for such Lenders (the "ADMINISTRATIVE AGENT"), and
NATIONSBANK N.A., as documentation co-agent for such Lenders (the "DOCUMENTATION
AGENT"; each of the Administrative Agent and the Documentation Agent sometimes
hereinafter referred to individually as a "CO-AGENT" and together as
"CO-AGENTS").
R E C I T A L S:
A. The Revolving Borrower has entered into a Credit Agreement, dated as
of June 30, 1994, as amended and restated as of September 29, 1994; as of
October 4, 1995; and as of February 6, 1996 and as subsequently amended by a
First Amendment dated as of July 1, 1996 and by a Second Amendment dated as of
November 1, 1996 with Bank of America National Trust and Savings Association, as
the Administrative Co-Agent and Collateral Co-Agent and certain of the Lenders
(the "ORIGINAL CREDIT AGREEMENT").
B. The Revolving Borrower is engaged directly and through its various
Subsidiaries in the Existing Lines of Business (as defined herein).
C. The Revolving Borrower and/or its Subsidiaries may from time to time
make Approved Acquisitions (as defined herein).
D. Under the Original Credit Agreement, the Revolving Borrower has
obtained commitments from the Lenders which are parties thereto pursuant to
which
(a) Revolving Loans will be made to the Revolving Borrower from time
to time prior to the Commitment Termination Date;
(b) Letters of Credit will be issued by an Issuer for the account of
the Revolving Borrower and under the several responsibilities of the
Lenders from time to time prior to the Commitment Termination Date;
(c) Term Loans have been made to the Term Borrower; and
<PAGE>
(d) The Revolving Borrower has guaranteed such Term Loans.
E. The Revolving Borrower and the Term Borrower have requested the
Co-Agents and the Lenders to amend and restate the Original Credit Agreement to
provide for:
(a) the changes to pricing and the other amendments set forth herein;
and
(b) the release of the Collateral.
F. The Lenders are willing, on the terms and subject to the conditions
hereinafter set forth (including ARTICLE VI), to so amend and restate the
Original Credit Agreement, and to release the Collateral.
G. The proceeds of Revolving Loans and Letters of Credit have been and
will be used to finance Approved Acquisitions (as defined herein) and for
general corporate purposes of the Revolving Borrower other than Restricted
Payments and the proceeds of Term Loans have been used to refinance Indebtedness
of the Term Borrower to the Revolving Borrower incurred in connection with the
acquisition by the Revolving Borrower of all the issued and outstanding stock of
the Term Borrower.
NOW, THEREFORE, the parties hereto agree that, effective on the Restatement
Effective Date (as hereinafter defined), the Original Credit Agreement shall be
and hereby is amended and restated in its entirety to read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 DEFINITIONS.
(a) GENERAL DEFINITIONS. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings (such meanings
to be equally applicable to the singular and plural forms thereof):
"ABSOLUTE RATE" has the meaning specified in SUBSECTION 2.6(c).
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bids setting
forth Absolute Rates pursuant to SECTION 2.6.
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<PAGE>
"ABSOLUTE RATE BID LOAN" means a Bid Loan that bears interest at a rate
determined with reference to the Absolute Rate.
"ACQUISITION" means one or more of a series of related transactions in
which the Revolving Borrower or any of its Subsidiaries (a) acquires any
material portion of the assets, liabilities, capital stock and/or other
ownership interest or any material portion of the assets of any division or any
business group thereof of any Person that is not an Affiliate of the Revolving
Borrower or any of its Subsidiaries or (b) purchases any in-place facilities
(not including the purchase of equipment in the ordinary course of business),
excepting from CLAUSES (a) and (b) any acquisitions of stock or assets, or
purchases of any in-place facilities, for an aggregate purchase price not to
exceed $5,000,000 in any Fiscal Year.
"ACQUIRED NET OPERATING CASH FLOW" means, with respect to any Approved
Acquisition for any period, (i) the net income, PLUS (ii) the interest expense,
PLUS (iii) all United States Federal, state, local and foreign income tax, PLUS
(iv) any extraordinary losses, MINUS (v) any extraordinary gains, PLUS, (vi) all
depletion, depreciation and amortization expense for such period, as each of the
items specified in CLAUSES (i) through (vi) are reasonably allocable to the
assets, capital stock, division or business group acquired in such Approved
Acquisition.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each other
Person which shall have subsequently been appointed as the successor
Administrative Agent pursuant to SECTION 10.9.
"ADMINISTRATIVE AGENT/RELATED PERSONS" means the Administrative Agent in
its capacity as such and any successor agent arising under SECTION 10.9,
together with their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"AFFECTED LENDER" is defined in CLAUSE (b) of SECTION 5.12.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
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<PAGE>
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"AGREEMENT" means, on any date, this Fourth Amended and Restated Credit
Agreement as originally in effect on the Restatement Effective Date and as
thereafter from time to time amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base Rate
Committed Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its reference rate; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent PLUS 0.50%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Committed Loans will take effect simultaneously with each change in
the Alternate Base Rate. The Administrative Agent will give notice promptly to
the Borrowers and the Lenders of changes in the Alternate Base Rate.
"APPLICABLE LAW" means, with respect to any Person or matter, any law,
rule, regulation, order, decree or other requirement having the force of law
relating to such Person or matter and, where applicable, any interpretation
thereof by any Person having jurisdiction with respect thereto or charged with
the administration or interpretation thereof.
"APPLICABLE MARGIN" is defined in SECTION 3.2.1.
"APPROVED ACQUISITION" means any Acquisition
(i) which is not contested at any time by the majority of the
existing directors of the acquired entity or the Person from whom the
Acquisition is to be made;
(ii) with respect to which all or substantially all of the acquired
properties are used in the operations or expansion of an Existing Line of
Business or a substantially similar line of business;
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<PAGE>
(iii) which, if such Acquisition is to be financed with Credit
Extensions in an aggregate amount in excess of $50,000,000, has been
approved in writing by the Majority Lenders.
"ASBESTOS LITIGATION" means any litigation, suit, action, arbitration or
proceeding instituted or made against the Revolving Borrower or any of its
Subsidiaries, or between the Revolving Borrower or any of its Subsidiaries and
any insurer, or including the Revolving Borrower or any of its Subsidiaries and
involving any insurance policy of the Revolving Borrower or any of its
Subsidiaries, in each case, arising from or related to any liability, claim,
judgment, order or decree related to asbestos, including, without limitation,
any Personal Injury Asbestos Claim and any Asbestos Building Material Claim.
"ASBESTOS QUALIFICATION" means, relative to the opinion or certification of
any independent public accountant delivering such opinion or certification
pursuant to CLAUSE (b) of SECTION 8.1.1 as to any financial statement of the
Revolving Borrower, any qualification or exception to such opinion or
certification for any liability or potential liability of the Revolving Borrower
relating to asbestos or Asbestos Litigation.
"ASSIGNEE LENDER" is defined in SECTION 11.11.1.
"AUTHORIZED OFFICER" means, relative to any Obligor, those of its officers
or other designees whose signatures and incumbency shall have been certified to
the Administrative Agent and the Lenders pursuant to SECTION 6.1.2. Any
reference herein to a "senior Authorized Officer" shall be deemed to include a
chief financial officer or chief accounting officer.
"BOFA" means Bank of America National Trust and Savings Association, a
national banking association.
"BASE RATE COMMITTED LOAN" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.
"BID BORROWING" means a Borrowing hereunder consisting of one or more Bid
Loans made to the Revolving Borrower on the same day by one or more Lenders.
"BID LOAN" means a Loan by a Lender to the Revolving Borrower under SECTION
2.5, which may be a Eurodollar Bid Loan or an Absolute Rate Bid Loan.
"BID LOAN LENDER" means, in respect of any Bid Loan, the Lender making such
Bid Loan to the Revolving Borrower.
-5-
<PAGE>
"BID LOAN NOTE" has the meaning specified in SECTION 2.9.
"BORROWER" means each of the Revolving Borrower and the Term Borrower and
"Borrowers" means both the Revolving Borrower and the Term Borrower.
"BORROWING" means the Loans of the same Type and made by all Lenders to the
same Borrower on the same Business Day, or a Swingline Loan or Loans or Bid Loan
or Loans made to the Revolving Borrower on the same day by the Swingline Lender
or Bid Loan Lender, respectively, in each case pursuant to ARTICLE II, and, in
the case of the Term Borrower, is a Committed Borrowing and, in the case of the
Revolving Borrower, may be a Committed Borrowing, a Swingline Borrowing, or a
Bid Borrowing and, in either case with respect to Eurodollar Committed Loans,
having the same Interest Period.
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorized Officer of the applicable Borrower, substantially in the form of
EXHIBIT B-1 hereto in the case of the Revolving Borrower and EXHIBIT B-2 hereto
in the case of the Term Borrower.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are authorized or required to be closed in San Francisco,
California; and
(b) relative to the making, continuing, prepaying or repaying of any
Eurodollar Committed Loans, any day on which dealings in Dollars are
carried on in the eurodollar interbank market of the Administrative Agent's
Eurodollar Office.
"CAPITAL EXPENDITURES" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the Revolving Borrower
and its Subsidiaries for fixed or capital assets (other than Approved
Acquisitions) made during such period which, in accordance with GAAP, would
be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations of the
Revolving Borrower or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount
-6-
<PAGE>
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
"CASH EQUIVALENT INVESTMENT" means, at any time,
(I) with respect to investments denominated in Dollars:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated at least A-l by Standard & Poor's
Ratings Services or P-l by Moody's Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance, maturing not
more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in CLAUSE (c)(i))
which
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of CLAUSES (a) through (c);
and
(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of
such Lender (or other commercial banking institution) thereunder, and
(II) with respect to investments denominated in Canadian Dollars,
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<PAGE>
(a) any securities issued or fully guaranteed or insured by the
government of Canada or any agency or instrumentality thereof,
(b) any time deposit, certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is issued by:
(i) any bank listed under Schedule I to the Bank Act (Canada),
(ii) any bank other than one listed in CLAUSE (i), having capital
and surplus in excess of $500,000,000 and the commercial paper of the
holding or parent company of which is rated at least A-1 or the
equivalent thereof by Standard & Poor's Ratings Services or at least
P-1 or the equivalent thereof by Moody's Investors Service, Inc.,
(iii) any Lender; or
(iv) any Canadian bank the short-term debt or deposit ratings of
which have been assigned an investment grade credit rating by CBRS,
Inc. or the Dominion Bond Rating Service Limited;
(c) commercial paper, maturing not more than nine months from the
date of issue, issued by a corporation (other than an Affiliate of any
Obligor) organized under the laws of Canada or any province of Canada and
that is rated at least A1 or the equivalent by CBRS, Inc. and R1 (high) or
R1 (middle) by the Dominion Bond Rating Service Limited.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE OF CONTROL" (a) with respect to the Revolving Borrower, means the
occurrence of either
(i) any Person or any Persons acting together that would constitute a
"group" (for purposes of Section 13(d) of the Securities Exchange Act of
1934, as amended, or any successor provision thereto) (a "Group"), together
with any Affiliates thereof, shall beneficially own (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended, or any
successor provision thereto) at least 15% of the outstanding shares of
voting stock of the Revolving Borrower, or
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(ii) any Person, or Group, together with any Affiliates thereof, shall
succeed in having sufficient of its nominees elected to the Board of
Directors of the Revolving Borrower such that such nominees, when added to
any existing director remaining on the Board of Directors of the Revolving
Borrower after such election who is an Affiliate of such Group, will
constitute a majority of the Board of Directors of the Revolving Borrower;
and
(b) with respect to the Term Borrower, means the occurrence of either
(i) the failure of the Revolving Borrower to beneficially own, free
and clear of all Liens, 100% of the issued and outstanding shares of the
voting and nonvoting stock (including warrants, options, conversion rights,
and other rights of purchase or convert into such stock) of the Term
Borrower on a fully diluted basis, or
(ii) the creation or imposition of any Lien on any shares of capital
stock of the Term Borrower.
"CO-AGENT" and "CO-AGENTS" are defined in the PREAMBLE.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL" has the meaning provided in the Original Credit Agreement.
"COLLATERAL DOCUMENTS" means, collectively, (i) the Security Agreement, the
Subsidiary Security Agreement and the Fibreboard Pledge Agreement (as such terms
were defined in the Original Credit Agreement) and all other security documents
covering any of the Collateral; and all financing statements (or comparable
documents) now or hereafter filed in connection with the Loan Documents in
accordance with the UCC (or comparable law) against the Revolving Borrower or
any of its Subsidiaries as a debtor in favor of the Lenders or the
Administrative Agent for the benefit of the Lenders as secured party and (ii)
any amendments, supplements, modifications, renewals, replacements,
consolidations substitutions and extensions of any of the foregoing.
"COMMITMENT" means, relative to any Lender, such Lender's obligation to
make Committed Revolving Loans pursuant to CLAUSE (a) of SECTION 2.1.1 and to
issue (in the case of an Issuer) or participate in (in the case of all Lenders)
Letters of Credit pursuant to SECTION 2.1.2.
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"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Default described in CLAUSES (a) through (d)
of SECTION 9.1.9 with respect to the Revolving Borrower or any of its
Subsidiaries; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans to be due and payable pursuant
to SECTION 9.3, or
(ii) in the absence of such declaration, the giving of notice by
the Administrative Agent, acting at the direction of the Majority
Lenders, to the Borrowers that the Commitments to make Loans and issue
Letters of Credit have been terminated.
"COMMITTED BORROWING" means a Borrowing hereunder consisting of Committed
Loans made on the same day by the Lenders ratably according to their respective
Percentages and, in the case of Eurodollar Committed Loans, having the same
Interest Periods.
"COMMITTED LOAN" means a Committed Revolving Loan or a Committed Term Loan.
"COMMITTED LOAN NOTE" means a Revolving Loan Note or a Term Loan Note.
"COMMITTED REVOLVING LOAN" has the meaning specified in SECTION 2.1, and
may be a Eurodollar Committed Loan or a Base Rate Committed Loan.
"COMMITTED TERM LOAN" has the meaning specified in SECTION 2.1 and may be a
Eurodollar Committed Loan or a Base Rate Committed Loan.
"COMPETITIVE BID" means an offer by a Lender to make a Bid Loan in
accordance with SUBSECTION 2.6(b).
"COMPETITIVE BID REQUEST" has the meaning specified in SUBSECTION 2.06(a).
"COMPLIANCE CERTIFICATE" is defined in CLAUSE (c) of SECTION 8.1.1.
"CONFIRMATION OF FIBREBOARD GUARANTY" means a confirmation of guaranty by
Fibreboard Corporation substantially in the form attached hereto as EXHIBIT I-2,
confirming the Fibreboard Guaranty.
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"CONFIRMATION OF GUARANTY" means a confirmation of guaranty by each
Significant Subsidiary a party to the Guaranty, dated as of February 6, 1996, as
contemplated by the Original Credit Agreement, substantially in the form
attached hereto as EXHIBIT I-1.
"CONSOLIDATED EBIT" means, for any period, the sum of
(a) Consolidated Net Income for such period; PLUS
(b) Consolidated Interest Expense for such period; PLUS
(c) all United States federal, state, local and foreign income taxes
of the Revolving Borrower and its Subsidiaries for such period deducted in
arriving at Consolidated Net Income for such period; PLUS
(d) losses from discontinued business operations and extraordinary
losses of the Revolving Borrower and its Subsidiaries for such period;
MINUS
(e) gains from discontinued business operations and extraordinary
gains of the Revolving Borrower and its Subsidiaries for such period; MINUS
(f) without duplication with any of the foregoing, any Settlement
Gains for such period.
"CONSOLIDATED EBITDA" means, for any period, the sum of
(a) Consolidated EBIT for such period; PLUS
(b) all depletion, depreciation and amortization expense for such
period, determined on a consolidated basis for the Revolving Borrower and
its Subsidiaries for such period.
"CONSOLIDATED FUNDED DEBT" means all Funded Debt of the Revolving Borrower
and its Subsidiaries (other than (a) the Gaylord Debt and (b) Funded Debt
related to or resulting from Asbestos Litigation, including, without limitation,
Debt under any Settlement Agreement).
"CONSOLIDATED FUNDED DEBT TO CASH FLOW RATIO" means, on the last day of any
Fiscal Quarter, the ratio of
(a) Consolidated Funded Debt on such date
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TO
(b) (i) Consolidated Net Operating Cash Flow for the four
consecutive Fiscal Quarters ending on such date PLUS
(ii) with respect to each Approved Acquisition made during the
four consecutive Fiscal Quarters immediately preceding the last day of such
Fiscal Quarter, the aggregate amount of Acquired Net Operating Cash Flow
for the period beginning four Fiscal Quarters before the last day of such
Fiscal Quarter and ending on the date each such Approved Acquisition was
made.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, for any period, the ratio of
(a) Consolidated EBIT for such period
TO
(b) Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the aggregate
interest expense of the Revolving Borrower and its Subsidiaries for such period
determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, all amounts which, in
conformity with GAAP, would be included under net income on a consolidated
income statement of the Revolving Borrower and its Subsidiaries for such period.
"CONSOLIDATED NET OPERATING CASH FLOW" means, for any period, the excess,
if any, of
(a) Consolidated EBITDA for such period
OVER
(b) Maintenance Capital Expenditures for such period.
"CONSOLIDATED NET WORTH" means, on any date, the consolidated net worth of
the Revolving Borrower and its Subsidiaries on such date, as calculated in
accordance with GAAP.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or
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guarantees the payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of
the debt, obligation or other liability guaranteed thereby or, if not stated
or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of applicable
Borrower, substantially in the form of EXHIBIT C hereto.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with either Borrower, are
treated as a single employer under Section 414 of the Code or Section 4001 of
ERISA.
"CREDIT EXTENSION" means and includes
(a) the advancing of any Loans by the Lenders in connection with a
Borrowing, and
(b) any issuance or extension by an Issuer of a Letter of Credit.
"CURRENT QUARTER" is defined in CLAUSE (b) of SECTION 3.2.1.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DISBURSEMENT DATE" is defined in SECTION 4.5.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented or otherwise modified from time
to time by the Revolving Borrower with the written consent of the Administrative
Agent and the Majority Lenders.
"DOCUMENTATION AGENT" is defined in the PREAMBLE and includes each other
Person which shall have subsequently been appointed as the successor
Documentation Agent pursuant to SECTION 10.9.
"DOCUMENTATION AGENT/RELATED PERSONS" means the Documentation Agent in its
capacity as such and any successor agent arising under SECTION 10.9, together
with their respective
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Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOLLAR EQUIVALENT" means, at any time as to any amount denominated in a
currency other than Dollars, the equivalent amount in Dollars as determined by
the Revolving Borrower at such time on the basis of the exchange rate for the
purchase of Dollars with such currency as published in THE WALL STREET JOURNAL
or substitute publication approved by the Administrative Agent on the third
Business Day preceding the time of such determination.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to the Administrative
Agent.
"ENVIRONMENTAL CLAIMS" 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 into, or
injury to, the environment, 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 Revolving
Borrower or any Subsidiary of the Revolving Borrower, or (b) any other
circumstances forming the basis of any violation, or alleged violation, of any
Environmental law.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental matters, including 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
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Management, Resource, Recovery and Recycling Act, the California Water Code
and the California Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EURODOLLAR AUCTION" means a solicitation of Competitive Bids setting forth
a Eurodollar Bid Margin pursuant to SECTION 2.6.
"EURODOLLAR BID LOAN" means any Bid Loan that bears interest at a rate
based upon the Eurodollar Rate.
"EURODOLLAR BID MARGIN" has the meaning specified in subsection
2.6(c)(ii)(c).
"EURODOLLAR COMMITTED LOAN" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the Eurodollar Rate (Reserve Adjusted).
"EURODOLLAR OFFICE" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) as designated from time to time by notice from such
Lender to the Borrowers and the Administrative Agent, whether or not outside the
United States, which shall be making or maintaining Eurodollar Committed Loans
of such Lender hereunder.
"EURODOLLAR RATE" is defined in SECTION 3.2.1.
"EURODOLLAR RATE (RESERVE ADJUSTED)" is defined in SECTION 3.2.1.
"EURODOLLAR RESERVE PERCENTAGE" is defined in SECTION 3.2.1.
"EVENT OF DEFAULT" is defined in SECTION 9.1.
"EXISTING LINES OF BUSINESS" means the following lines of business operated
by the Revolving Borrower or any of its Subsidiaries primarily in the United
States or Canada:
(i) the building materials business, including the manufacture,
distribution, and wholesale marketing and sale of building materials; and
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(ii) the industrial products business, consisting of the production,
distribution, and wholesale marketing and sale of molded industrial
insulation, fireproofing board and metal jacketing and other materials for
use in industrial construction applications.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Administrative Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Administrative Agent.
"FIBREBOARD GUARANTY" means the Guaranty, dated as of February 6, 1996, by
Fibreboard Corporation, as required by the Original Credit Agreement, as
amended, supplemented, restated or otherwise modified from time to time.
"FISCAL QUARTER" means each fiscal quarter of the Revolving Borrower's
Fiscal Year.
"FISCAL YEAR" means each fiscal year of the Revolving Borrower, ending on
the last Saturday in December of each year.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"FUNDED DEBT" means, with respect to any Person and as of any date of
determination, the sum of (i) all Indebtedness of such Person under this
Agreement PLUS (ii) all other Indebtedness of such Person that matures more than
one year from the date of the creation of such Indebtedness, or matures within
one year from the date of the creation of such Indebtedness but is renewable or
extendable, at the option of the debtor, to a date more than one year from such
date, or arises under a revolving credit or similar agreement that obligates the
lender or lenders thereunder to extend credit during a period of more than one
year from such date of determination (in each case including amounts of Funded
Debt required to be paid or prepaid within one year from the date of
determination).
"GAAP" is defined in SECTION 1.4.
"GAAP CHANGES" is defined in SECTION 1.4.
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"GAYLORD DEBT" means any amounts outstanding under the 1974 Pollution
Control Revenue Bonds (Fibreboard Corporation) Series A issued by the California
Pollution Control Financing Authority in the original principal amount of
$13,300,000.
"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.
"GUARANTEED FACILITY INDEBTEDNESS" means Indebtedness of any Subsidiary of
the Revolving Borrower or the Term Borrower that is guaranteed by the Revolving
Borrower or the Term Borrower, respectively, and incurred by such Subsidiary and
guaranteed by such Borrower pursuant to agreements approved in writing by and on
terms and conditions satisfactory to the Administrative Agent and the Majority
Lenders in their sole discretion, as such agreements may be amended,
supplemented, restated or otherwise modified from time to time with the consent
of the Administrative Agent and the Majority Lenders. The Subsidiary
Indebtedness described on SCHEDULE III hereto and as in effect on the date
hereof shall constitute Guaranteed Facility Indebtedness.
"GUARANTY" means that certain Guaranty dated as of the date hereof,
executed and delivered by each Significant Subsidiary not a party to the
Confirmation of Guaranty in substantially the form of EXHIBIT H hereto, as
amended, supplemented, restated or otherwise modified from time to time.
"GUARANTY DOCUMENTS" means, collectively, the Fibreboard Guaranty, the
Guaranty, and all other guarantees and other similar agreements between the
Revolving Borrower or any of its Subsidiaries and any of the Lenders or the
Administrative Agent for the benefit of the Lenders now or hereafter delivered
to any of the Lenders or the Administrative Agent pursuant to or in connection
with the Loan Documents.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local
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law, regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended or hereafter amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under currency or interest rate swap agreements, currency or
interest rate cap agreements and currency or interest rate collar agreements,
and all other agreements or arrangements designed and used by such Person to
protect such Person against fluctuations in interest rates or currency exchange
rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HIGHEST LAWFUL RATE" is defined in SECTION 10.14.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of Arthur Andersen & Co. or other independent public accountants
acceptable to the Administrative Agent and the Majority Lenders as to any
financial statement of the Revolving Borrower, any qualification or exception to
such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement;
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Revolving Borrower to be in default of any of its obligations under
SECTION 8.2.4; or
(d) which is an Asbestos Qualification.
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM GENERIS
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
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"INDEBTEDNESS" of any Person means, at any time, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services (other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade),
and indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse; and
(f) all Contingent Liabilities of such Person in respect of any of the
foregoing;
PROVIDED, THAT, funding obligations under a Pension Plan, whether or not
attributable to past services, shall not constitute Indebtedness. For all
purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
"INDEMNIFIED LIABILITIES" is defined in SECTION 11.4.
"INDEMNIFIED PARTIES" is defined in SECTION 11.4.
"INTEREST PERIOD" means, relative to (i) any Eurodollar Committed Loans,
the period beginning on (and including) the date on which such Loan is made or
continued as, or converted into, a Eurodollar Committed Loan pursuant to SECTION
2.3 or 2.4 and ending on (but excluding) the day which numerically corresponds
to such date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last
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Business Day of such month), (ii) any Eurodollar Bid Loans, the period
beginning on (and including) the date on which such Loan is made and ending
on (but excluding) the day which numerically corresponds to such date in any
of the twelve months ending immediately thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), and
(iii) any Absolute Rate Bid Loan, a period of not less than 7 days and not
more than 365/366 days, as applicable for the year in which such Loan is
made, in each case as the applicable Borrower may select in its relevant
notice pursuant to SECTION 2.3, 2.4 or 2.5; PROVIDED, HOWEVER, that
(a) neither Borrower shall be permitted to select Interest Periods to
be in effect at any one time for such Borrower which have expiration dates
occurring on more than five different dates;
(b) Interest Periods commencing on the same date for Loans comprising
part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless, in the case of a Eurodollar Bid Loan or a Eurodollar
Committed Loan, such next following Business Day is the first Business Day
of a calendar month, in which case such Interest Period shall end on the
Business Day next preceding such numerically corresponding day); and
(d) no Interest Period (x) for any Revolving Loans may end later than
the date set forth in CLAUSE (a) of the definition of "REVOLVING COMMITMENT
TERMINATION DATE" and (y) for any Term Loan may end later than the Stated
Maturity Date, as each such date may be extended in accordance with this
Agreement.
"INVESTMENT" of any Person means,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees, and accounts receivable, made in the ordinary course of
business);
(b) any Contingent Liability of such Person in respect of obligations
of any other Person; and
(c) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity
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thereon (and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or
capital amount equal to the fair market value of such property.
"INVITATION FOR COMPETITIVE BIDS" means a solicitation for Competitive
Bids, substantially in the form of EXHIBIT L.
"ISSUANCE REQUEST" means a properly completed application for a Letter of
Credit on the applicable Issuer's standard form, executed by the chief
executive, accounting or financial Authorized Officer of the Revolving Borrower.
"ISSUER" means any affiliate, unit or agency of BofA, or any other Lender
which has agreed to issue one or more Letters of Credit at the request of the
Revolving Borrower and with the consent of the Administrative Agent, and which
has notified the Administrative Agent in writing prior to such issuance that it
is an Issuer hereunder with respect to such Letter of Credit.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT D hereto.
"LENDERS" is defined in the PREAMBLE and shall include the Swingline Lender
acting in its capacity as such.
"LETTER OF CREDIT" is defined in SECTION 4.1.
"LETTER OF CREDIT AVAILABILITY" means, at any time, the lesser of
(a) the excess of
(i) $30,000,000
OVER
(ii) the then Letter of Credit Outstandings,
OR
(b) the Revolving Commitment Availability at such time.
"LETTER OF CREDIT OUTSTANDINGS" means, at any time, an amount equal to the
sum of
(a) the aggregate Stated Amount at such time of all Letters of Credit
then outstanding and undrawn (as such aggregate Stated Amount shall be
adjusted, from time to
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time, as a result of drawings, the issuance of Letters of Credit,
or otherwise),
PLUS
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever or the filing of any UCC-1 financing statement or
any similar financing statement (other than a financing statement not filed in
respect of a security interest (as defined in the UCC)).
"LOAN" means a Revolving Loan or a Term Loan.
"LOAN DOCUMENT" means this Agreement, any Note, any Guaranty Document, any
Letter of Credit, any application for a Letter of Credit and any other
instrument or agreement executed and/or delivered by an Obligor pursuant hereto
or thereto or otherwise in connection herewith or therewith, as each may be
amended, supplemented, restated or otherwise modified from time to time.
"MAINTENANCE CAPITAL EXPENDITURES" means, for any period, the aggregate
amount of all expenditures of the Revolving Borrower and its Subsidiaries for
the maintenance of fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures.
"MAJORITY LENDERS" means (a) at any time prior to the Commitment
Termination Date, Lenders having at least 51% of the Commitments, and (b)
otherwise, Lenders holding at least 51% of the then aggregate unpaid principal
amount of the Loans.
"MATERIAL ADVERSE EFFECT" means, relative to any condition or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding and the enactment,
issuance or amendment of any Applicable Law), a material adverse effect on:
(a) the consolidated business, assets, revenues, financial condition,
or operations or (but only with respect to Asbestos Litigation related
matters) prospects of the Revolving Borrower and its Subsidiaries, taken as
a whole; or
(b) the ability of the Revolving Borrower and its Subsidiaries, taken
as a whole, to perform any of the
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payment or other material obligations under any Loan Document to which
any Obligor is a party.
"MATERIAL POST-COLLATERAL RELEASE ASBESTOS LITIGATION" means any Asbestos
Litigation the payment or satisfaction of which is not adequately provided for
by
(i) if the Global Approval Judgment shall have occurred, the Global
Settlement Agreement or the Insurance Settlement Agreement to the extent
applicable (or any other agreement referred to in such agreements),
(ii) if the Global Approval Judgment shall not have occurred, the
Insurance Settlement Agreement (or any agreement referred to therein) (the
Settlement Agreement Approval Judgment having occurred), or
(iii) available insurance coverage which has been confirmed in writing
to the Revolving Borrower (whether by binding settlement agreement of by
other writing) and/or existing reserves as shown on the Revolving
Borrower's December 31, 1995 financial statements
which (in any such case), if determined adversely to the Revolving Borrower or
any of its Subsidiaries, as the case may be, could reasonably be expected to
have a Material Adverse Effect.
"NOTE" means a Revolving Note or a Term Note and "NOTES" means both the
Revolving Notes and the Term Notes.
"OBLIGATIONS" means all obligations (monetary or otherwise) of each
Borrower and each other Obligor to the Co-Agents and the Lenders and their
respective successors and assigns arising under or in connection with this
Agreement, the Notes and each other Loan Document, howsoever created, arising or
evidenced, whether direct or indirect, joint or several, absolute or contingent,
or now or hereafter existing, or due or to become due, including, without
limitation, all indebtedness of any kind arising under, and all amounts of any
kind which at any time become due or owing to either Co-Agent or any of the
Lenders under or with respect to, the Loan Documents, all of the covenants,
obligations, indemnifications and agreements of each Obligor (and the truth of
all representations and warranties of each Obligor to the Co-Agents and the
Lenders) in, under or pursuant to the Loan Documents, any and all advances,
costs or expenses paid or incurred by the Documentation Agent, the
Administrative Agent or any of the Lenders or any agent or trustee therefor to
perform any obligation of each Borrower or any other Obligor under any of the
Loan Documents, or to collect any amount owing to the Documentation Agent, the
Administrative Agent or any of the Lenders which is secured thereunder; interest
on all of the
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foregoing (including, without limitation, interest accruing after the
maturity of the Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Obligor whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding); and all costs of
enforcement and collection of the Obligations, the Loan Documents and any
other document relating to the Obligations.
"OBLIGOR" means each Borrower or any other Person (other than either
Co-Agent, any Issuer or any Lender) obligated under, or otherwise a party to,
any Loan Document.
"ORGANIC DOCUMENT" means, relative to any Obligor, its certificate or
articles of incorporation, its by-laws and all shareholder voting agreements,
voting trusts and similar arrangements applicable to any of its authorized
shares of capital stock.
"ORIGINAL CREDIT AGREEMENT" is defined in RECITAL A.
"ORIGINAL EFFECTIVE DATE" means June 30, 1994.
"ORIGINAL PERCENTAGE" means, relative to any Lender, the percentage set
forth with respect to such Lender under the heading "Original Percentage" on
SCHEDULE II.
"PARTICIPANT" is defined in SECTION 11.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which either Borrower or
any corporation, trade or business that is, along with either Borrower, a member
of a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender (i) on any date before the
Restatement Effective Date, such Lender's Original Percentage and (ii) on and
after the Restatement Effective Date, such Lender's Restated Percentage, or on
any date, the percentage set forth in the Lender Assignment Agreement, as any of
such percentages may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to SECTION 11.11.
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"PERSON" means any natural person, corporation, partnership, firm, limited
liability company, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PRECEDING QUARTER" is defined in CLAUSE (c) of SECTION 3.2.1.
"QUALIFIED WORKING CAPITAL FACILITY" means one or more agreements under
which the Term Borrower or any of its Subsidiaries may, from time to time, incur
working capital Indebtedness to financial institutions in an aggregate amount at
any one time not to exceed U.S. $30,000,000 or the Dollar Equivalent thereof, as
such agreements may be amended, supplemented, restated or otherwise modified
from time to time with the consent of the Administrative Agent and the Majority
Lenders. The Indebtedness described in Schedule III hereto and as in effect on
the date hereof shall constitute a Qualified Working Capital Facility; PROVIDED
that the aggregate amount of such Indebtedness, when taken together with the
aggregate amount of all other Indebtedness under a Qualified Working Capital
Facility, at no time exceeds U.S. $30,000,000 or the Dollar Equivalent thereof.
"QUARTERLY PAYMENT DATE" means the last day of each March, June, September,
and December or, if any such day is not a Business Day, the next succeeding
Business Day.
"RECONCILIATION STATEMENT" means a written statement of the applicable
Borrower, signed by an Authorized Officer, in form and substance satisfactory to
the Administrative Agent reconciling the effect of changes in GAAP as
contemplated or permitted by SECTION 1.4.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 4.6.
"RELEASE" means a "release", as such term is defined in CERCLA.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as in effect from time to
time.
"RESTATED PERCENTAGE" means, relative to any Lender, the percentage set
forth with respect to such Lender under the heading "Restated Percentage" on
SCHEDULE II.
"RESTATEMENT EFFECTIVE DATE" means the date this Agreement becomes
effective pursuant to SECTION 6.1.
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"RESTRICTED PAYMENT" means any payment or distribution which if made by
the Revolving Borrower or any of its Subsidiaries would be in violation of
SECTION 8.2.6.
"REVOLVING BORROWER" is defined in the PREAMBLE.
"REVOLVING COMMITMENT AMOUNT" means, on any date, $225,000,000, as such
amount may be reduced from time to time pursuant to SECTION 2.2.
"REVOLVING COMMITMENT AVAILABILITY" means, on any date, the excess of
(a) the Revolving Commitment Amount,
OVER
(b) the sum of
(i) the outstanding principal amount of all Revolving Loans on
such date,
PLUS
(ii) the Letter of Credit Outstandings on such date.
"REVOLVING COMMITMENT TERMINATION DATE" means the earliest of
(a) March 31, 2002, as such date may be extended pursuant to SECTION
2.1.4;
(b) the date on which the Revolving Commitment Amount is terminated in
full or reduced to zero pursuant to SECTION 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (a), (b) or (c), the
Commitments shall terminate automatically and without any further action.
"REVOLVING LOAN" means an extension of credit by a Lender to the Revolving
Borrower under ARTICLE II, and may be a Committed Loan, a Bid Loan or a
Swingline Loan.
"REVOLVING NOTE" means a fourth amended and restated promissory note of the
Revolving Borrower payable to the order of any Lender, in the form of EXHIBIT
A-1 hereto (as such promissory
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note may be amended, endorsed or otherwise modified from time to time), or
any Committed Loan Note or Bid Loan Note in each case evidencing the
aggregate Indebtedness of the Revolving Borrower to such Lender resulting
from outstanding Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"SETTLEMENT AGREEMENT MODIFICATION" is defined in SECTION 8.2.9.
"SETTLEMENT AGREEMENTS" means the agreements listed on EXHIBIT J.
"SETTLEMENT GAINS" means, on any date, the cumulative amount since the
Restatement Effective Date of all amounts which would be recorded as gains from
asbestos litigation reserves or the positive adjustment of other Asbestos
Litigation related balance sheet items that have an effect on the consolidated
income statement of the Revolving Borrower and its Subsidiaries in accordance
with GAAP.
"SIGNIFICANT SUBSIDIARY" means each Subsidiary of the Revolving Borrower
that
(a) is designated with an asterisk in ITEM 7.8 ("Subsidiaries") of the
Disclosure Schedule;
(b) accounted for at least 5% of consolidated revenues of the
Revolving Borrower and its Subsidiaries or 5% of Consolidated EBIT, in each
case for the four Fiscal Quarters ending on the last day of the last Fiscal
Quarter immediately preceding the date as of which any such determination
is made; or
(c) has assets which represent at least 5% of the consolidated assets
of the Revolving Borrower and its Subsidiaries as of the last day of the
last Fiscal Quarter immediately preceding the date as of which any such
determination is made,
all of which, with respect to CLAUSES (b) and (c), shall be as reflected on the
audited consolidating financial statements of the Revolving Borrower for the
period, or as of the date, in question.
"STATED AMOUNT" of each Letter of Credit means the maximum amount that
could be drawn under such Letter of Credit assuming that all conditions
precedent to drawings thereunder have been complied with.
"STATED EXPIRY DATE" is defined in SECTION 4.1.
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"STATED MATURITY DATE" means (a) with respect to Revolving Loans, the
Revolving Commitment Termination Date and (b) with respect to Term Loans, five
years and one day after the Restatement Effective Date set forth in a notice
delivered by the Administrative Agent to each Borrower and each Lender, in each
case, as such date may be extended pursuant to SECTION 2.1.4.
"SUBSIDIARY" means, with respect to any Person, any corporation of which
more than 50% of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"SWINGLINE LENDER" means BofA.
"SWINGLINE BORROWING" means a Borrowing hereunder consisting of one or more
Swingline Loans made to the Revolving Borrower on the same day by the Swingline
Lender.
"SWINGLINE CLEAN-UP DAY" has the meaning specified in SUBSECTION 3.1(d).
"SWINGLINE COMMITMENT" has the meaning specified in SECTION 2.7.
"SWINGLINE LOAN" has the meaning specified in SECTION 2.7.
"TAXES" is defined in SECTION 5.6.
"TERM BORROWER" is defined in the PREAMBLE.
"TERM COMMITMENT AMOUNT" means, on any date, $25,000,000.
"TERM LOAN" means an extension of credit by a Lender to the Term Borrower
under ARTICLE II.
"TERM NOTE" means a promissory note of the Term Borrower payable to the
order of any Lender, in the form of EXHIBIT A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Term Borrower to such Lender resulting from
outstanding Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.
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"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Committed Loan or a Eurodollar Committed Loan.
"UCC" means the Uniform Commercial Code as in effect in any jurisdiction.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"WELFARE PLAN" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
(b) CERTAIN ASBESTOS-RELATED DEFINITIONS. The following terms (whether or
not underscored) when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the following
meanings, and other capitalized terms used and not defined in this SECTION 1.2
shall have the meanings set forth in the Global Settlement Agreement or the
Insurance Settlement Agreement, as applicable each as modified by the Plant
Agreement (such meanings to be equally applicable to the singular and plural
forms thereof):
"CNA CASUALTY" means CNA Casualty Company of California, a California
corporation.
"COLUMBIA" means Columbia Casualty Company, an Illinois corporation.
"CONTINENTAL" means Continental Casualty Company, an Illinois corporation.
"FIBREBOARD" means Fibreboard Corporation; Fibreboard Paper Corporation;
Fibreboard Products, Incorporated; Paraffine Companies, Incorporated; Plant
Rubber & Asbestos Works; Pabco Products, Incorporated; and Pabco Insulation
Corporation; and each of their respective predecessors, Subsidiaries and
divisions, and with respect to Fibreboard Corporation's liability only, each of
their respective successors in interest.
"GLOBAL APPROVAL JUDGMENT" has the meaning set forth in the Global
Settlement Agreement as modified by the Plant Agreement.
"GLOBAL SETTLEMENT AGREEMENT" means the settlement agreement, dated as of
August 27, 1993, among Continental, CNA Casualty, Columbia, Pacific, the
Revolving Borrower and the Representative Plaintiffs as representatives of the
Settlement Class.
"INSURANCE SETTLEMENT AGREEMENT" means the Settlement Agreement, dated
October 12, 1993, among the Revolving Borrower, Continental, CNA Casualty,
Columbia and Pacific.
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"INSURERS" means (i) Continental, CNA Casualty, Columbia and all insurance
or indemnity companies controlling, controlled by or under common control with
any of them and (ii) Pacific and all insurance or indemnity companies
controlling, controlled by or under common control with it.
"PACIFIC" means Pacific Indemnity Company, a California corporation.
"PLANT AGREEMENT" shall mean that certain agreement, dated as of March,
1994, by and among the representatives of the Settlement Class, the Revolving
Borrower, Continental, CNA Casualty, Columbia, and Pacific.
"SETTLEMENT AGREEMENT APPROVAL JUDGMENT" has the meaning set forth in the
Insurance Settlement Agreement as modified by the Plant Agreement.
SECTION 1.2 USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each Note,
Borrowing Request, Continuation/Conversion Notice, Loan Document, notice and
other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3 CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS.
(a) Unless otherwise specified, all accounting terms used herein or in any
other Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder (including under SECTION 8.2.4) shall be
made, and all financial statements required to be delivered hereunder or
thereunder shall be prepared in accordance with, those generally accepted
accounting principles in the United States or Canada, as applicable ("GAAP")
applied in the preparation of the financial statements referred to in SECTION
7.5. Notwithstanding the immediately preceding sentence, if any changes in GAAP
from those used in the preparation of the financial statements referred to in
SECTION 7.5 ("GAAP CHANGES") hereafter occasioned by the promulgation of rules,
regulations, pronouncements or opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions) result in
a change in
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the method of calculation of, or in different components in, any of
the financial covenants, definitional provisions, standards or other terms or
conditions found in this Agreement, (i) the parties hereto agree to enter into
good faith negotiations with respect to amendments to this Agreement to conform
those covenants, definitional provisions, standards or other terms and
conditions as criteria for evaluating the Revolving Borrower's and its
Subsidiaries, financial condition and performance to substantially the same
criteria as were effective prior to such GAAP Change, and (ii) the Revolving
Borrower and its Subsidiaries shall be deemed to be in compliance with the
affected covenant or other provision during the 90-day period following any such
GAAP Change if and to the extent that the Revolving Borrower and its
Subsidiaries would have been in compliance therewith under GAAP as in effect
immediately prior to such GAAP Change; PROVIDED, HOWEVER, that this SECTION 1.4
shall not be deemed to require either Borrower, the Co-Agents or the Lenders to
agree to modify any provision of this Agreement or any other Loan Document to
reflect any such GAAP Change and, if the parties, in their sole discretion, fail
to reach agreement on such modifications prior to the end of the 90-day period
referred to in CLAUSE (ii), the terms of this Agreement shall remain unchanged
and the compliance of the Revolving Borrower and its Subsidiaries with the
covenants and other provisions contained herein shall, upon the expiration of
such 90-day period, be calculated in accordance with GAAP without giving effect
to such GAAP Change.
(b) If any GAAP Change occurs with respect to which the parties fail to
reach agreement after negotiation as provided in CLAUSE (a) of this SECTION 1.4,
then all financial covenants, definitional provisions, standards or other terms
or conditions for evaluating the Revolving Borrower's and its Subsidiaries'
financial condition and performance shall be calculated without giving effect to
such GAAP Change. At the time of any such change, the Revolving Borrower shall
furnish to the Administrative Agent, with sufficient copies for each Lender, a
statement of the Revolving Borrower's independent public accountants that such
accountants concur with such change and a Reconciliation Statement, and
following such change, the Revolving Borrower shall furnish the Administrative
Agent, with sufficient copies for each Lender, Reconciliation Statements (i)
with each financial statement furnished thereafter under this Agreement, and
(ii) with each certificate or other data or information furnished by the
Revolving Borrower under this Agreement to show the Revolving Borrower's and its
Subsidiaries' compliance with all applicable financial covenants, definitional
provisions, standards or other terms or conditions for evaluating the Revolving
Borrower's and its Subsidiaries' financial condition and performance hereunder.
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ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1 COMMITMENTS. On the terms and subject to the conditions of
this Agreement (including ARTICLE V), each Lender severally agrees as follows:
SECTION 2.1.1 REVOLVING LOAN COMMITMENTS; TERM LOANS. Subject to SECTION
2.1.3,
(a) From time to time on any Business Day occurring prior to the
Revolving Commitment Termination Date, each Lender will make Loans
(relative to such Lender, its "COMMITTED REVOLVING LOANS") to the Revolving
Borrower equal to such Lender's Percentage of the aggregate amount of the
Borrowing of Committed Revolving Loans requested by the Revolving Borrower
to be made on such day up to an aggregate principal amount not exceeding at
any time outstanding the Revolving Commitment Amount. On the terms and
subject to the conditions hereof, the Revolving Borrower may from time to
time borrow, prepay and reborrow Committed Revolving Loans.
(b) The Borrower acknowledges that the aggregate outstanding
principal amount of the Term Loans on the Restatement Effective Date under
the Original Credit Agreement is $25,000,000. On the Restatement Effective
Date, pursuant to SECTION 5.13, each Lender will purchase or sell
assignments of such Term Loans such that, immediately following such
purchases and sales, each Lender's principal amount of Term Loans will be
equal to such Lender's Percentage of $25,000,000.
SECTION 2.1.2 COMMITMENT TO ISSUE LETTERS OF CREDIT. From time to time on
any Business Day, each Issuer will issue, and each Lender will participate in,
the Letters of Credit, in accordance with ARTICLE IV.
SECTION 2.1.3 LENDERS NOT PERMITTED OR REQUIRED TO MAKE REVOLVING LOANS OR
ISSUE OR PARTICIPATE IN LETTERS OF CREDIT UNDER CERTAIN CIRCUMSTANCES. No
Lender shall be permitted or required to
(a) make any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount
(i) of all Revolving Loans of all Lenders, together with all
Letter of Credit Outstandings, would exceed the Revolving Commitment
Amount, or
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(ii) of all Revolving Loans of such Lender (other than any Bid
Loans or Swingline Loans of such Lender), together with its Percentage
of all Letter of Credit Outstandings, would exceed such Lender's
Percentage of the Revolving Commitment Amount; or
(b) issue (in the case of any Issuer) or participate in (in the case
of each Lender) any Letter of Credit if, after giving effect thereto
(i) the aggregate amount of all Letter of Credit Outstandings
would exceed $30,000,000,
(ii) all Letter of Credit Outstandings together with the
aggregate outstanding principal amount of all Revolving Loans of all
Lenders would exceed the Revolving Commitment Amount, or
(iii) such Lender's Percentage of all Letter of Credit
Outstandings together with the aggregate outstanding principal amount
of all Revolving Loans of such Lender (other than any Bid Loans or
Swingline Loans of such Lender) would exceed such Lender's Percentage
of the Revolving Commitment Amount.
SECTION 2.1.4 EXTENSION OF COMMITMENT TERMINATION DATES AND STATED
MATURITY DATE. (a) Not less than 60 days nor more than 120 days before (i) the
first anniversary of the date of the Restatement Effective Date and/or (ii) the
then current Revolving Commitment Termination Date and Stated Maturity Date for
Term Loans, the Revolving Borrower and the Term Borrower may, by written request
delivered to the Administrative Agent, request that the Revolving Commitment
Termination Date and Stated Maturity Date for Term Loans be extended by all the
Lenders for a period of one year from the then-current Revolving Commitment
Termination Date and Stated Maturity Date for Term Loans. The Administrative
Agent shall notify the Lenders of any such request. Such extension shall only
be effective upon approval thereof in writing by the Administrative Agent and
all the Lenders, and the execution and delivery of such amendments to the Loan
Documents and other documents as the Administrative Agent may require in
connection with such extension. The Administrative Agent and each Lender may
accept or reject any request for an extension in its sole and absolute
discretion. The Administrative Agent and each Lender shall use reasonable
efforts to accept or reject any such request within 30 days after receiving
notice thereof, PROVIDED that any failure by the Administrative Agent or Lender
to respond to such a request shall be deemed to be a rejection thereof.
(b) If any Lender rejects any Borrower's request for an extension
hereunder, subject to SECTION 11.11, such Borrower may:
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(i) request one or more of the other Lenders to acquire and assume (in such
Lender's sole discretion) all or part of such rejecting Lender's Loans and
Commitments; or (ii) designate a replacement bank or financial institution to
acquire and assume all or part of such rejecting Lender's Loans and
Commitments. Any such designation of a replacement bank or financial
institution under CLAUSE (ii) shall be subject to the prior written consent
of the Administrative Agent and the other Lenders (which consent shall not be
unreasonably withheld).
SECTION 2.2 MANDATORY AND OPTIONAL REDUCTIONS OF REVOLVING COMMITMENT
AMOUNTS.
SECTION 2.2.1 MANDATORY REDUCTIONS. At no time shall the Swingline
Commitment exceed the Revolving Commitment Amount, and any reduction of the
Revolving Commitment Amount which reduces the Revolving Commitment Amount below
the then current amount of the Swingline Commitment shall result in an automatic
corresponding reduction of the Swingline Commitment to the amount of the
Revolving Commitment Amount, as so reduced, without any action on the part of
the Swingline Lender.
SECTION 2.2.2 OPTIONAL REDUCTIONS. The Revolving Borrower may, from time
to time on any Business Day occurring after the time of the initial Borrowing
hereunder, voluntarily reduce the amount of the Revolving Commitment Amount;
PROVIDED, HOWEVER, that all such reductions shall require at least five Business
Days' irrevocable prior written notice to the Administrative Agent and be
permanent, and any partial reduction of the Revolving Commitment Amount shall be
in a minimum amount of $5,000,000 and in an integral multiple of $1,000,000;
PROVIDED FURTHER, HOWEVER, that no such reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Committed Revolving Loans
made on the effective date thereof, the outstanding principal amount of
Committed Revolving Loans, Swingline Loans and Bid Loans when taken together
with Letter of Credit Outstandings would exceed the Revolving Commitment Amount
then in effect. Once reduced in accordance with this SECTION 2.2.2, the
reduction in the Revolving Commitment Amount shall be applied to each Lender's
Commitment in accordance with such Lender's Percentage. All accrued commitment
fees to the effective date of any reduction of Commitments shall be paid on the
effective date of such reduction or termination.
SECTION 2.3 PROCEDURE FOR COMMITTED BORROWINGS. By delivering a Borrowing
Request to the Administrative Agent on or before 9:00 a.m., San Francisco time,
on a Business Day, the Revolving Borrower may from time to time irrevocably
request, on not less than one nor more than five Business Days' notice, in the
case of Base Rate Committed Loans, and on not less than three nor more than five
Business Days' notice, in the case of Eurodollar Committed Loans, that a
Committed Borrowing be made in
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a minimum amount of $5,000,000 and an integral multiple of $1,000,000, or in
the unused amount of the Revolving Commitment Amount. Promptly upon receipt
of such notice, the Agent shall advise each Lender thereof. On the terms and
subject to the conditions of this Agreement, each Committed Borrowing shall
be comprised of the Type of Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 11:00 a.m. (San Francisco
time) on such Business Day each Lender shall deposit with the Administrative
Agent same day funds in an amount equal to such Lender's Percentage of the
requested Committed Borrowing. Such deposit will be made to an account which
the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are timely received from the Lenders, the
Administrative Agent shall make such funds available to the applicable
Borrower by wire transfer on such Business Day to the accounts such Borrower
shall have specified in its Borrowing Request. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make any
Loan.
SECTION 2.4 CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 9:00
a.m., San Francisco time, on a Business Day, the Revolving Borrower and/or Term
Borrower, as applicable, may from time to time irrevocably elect,
(i) on not less than three nor more than five Business Days' notice,
in the case of any conversion of Base Rate Committed Loans to Eurodollar
Committed Loans or continuation of Eurodollar Committed Loans, and
(ii) on not less than one nor more than five Business Days' notice, in
the case of any conversion of Eurodollar Committed Loans to Base Rate
Committed Loans,
that all, or any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $1,000,000, of any Committed Loans be, in the case of Base
Rate Committed Loans, converted into Eurodollar Committed Loans or, in the case
of Eurodollar Committed Loans, converted into a Base Rate Committed Loan or
continued as a Eurodollar Committed Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any Eurodollar Committed Loan at
least three Business Days before the last day of the then current Interest
Period with respect thereto, such Eurodollar Committed Loan shall, on such last
day, automatically convert to a Base Rate Committed Loan); PROVIDED, HOWEVER,
that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Committed Loans of all Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, Eurodollar Committed Loans when any Default has occurred and is
continuing.
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SECTION 2.5 BID BORROWINGS. In addition to Committed Borrowings pursuant
to SECTION 2.1, each Lender severally agrees that the Revolving Borrower may, as
set forth in SECTION 2.6, from time to time prior to the Commitment Termination
Date, request the Lenders to submit offers to make Bid Loans to the Revolving
Borrower; PROVIDED, HOWEVER, that the Lenders may, but shall have no obligation
to, submit such offers and the Revolving Borrower may, but shall have no
obligation to, accept any such offers; and PROVIDED, FURTHER, that at no time
shall the sum of (i) the outstanding aggregate principal amount of all Bid
Loans, Committed Loans and Swingline Loans made by the Lenders, PLUS (ii) the
Letter of Credit Outstandings exceed the Revolving Commitment Amount.
SECTION 2.6 PROCEDURE FOR BID BORROWINGS. (a) When the Revolving
Borrower wishes to request the Lenders to submit offers to make Bid Loans
hereunder, it shall transmit to the Administrative Agent by telephone call
followed promptly by facsimile transmission a notice in substantially the form
of EXHIBIT M (a "COMPETITIVE BID REQUEST") so as to be received no later than
7:00 a.m. (San Francisco time) (x) four Business Days prior to the date of a
proposed Bid Borrowing in the case of a Eurodollar Auction, or (y) two Business
Days prior to the date of a proposed Bid Borrowing in the case of an Absolute
Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing, which
shall be a minimum amount of $5,000,000 or in multiples of $1,000,000
in excess thereof;
(iii) whether the Competitive Bids requested are to be for
Eurodollar Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of "Interest
Period" herein.
Subject to SUBSECTION 2.6(c), the Revolving Borrower may not request Competitive
Bids for more than three Interest Periods in a single Competitive Bid Request
and may not request Competitive Bids more than once in any period of five
Business Days.
(b) Upon receipt of a Competitive Bid Request, the Administrative
Agent will promptly send to the Lenders by facsimile transmission an Invitation
for Competitive Bids, which shall constitute an invitation by the Revolving
Borrower to each Lender to submit Competitive Bids offering to make the Bid
Loans
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to which such Competitive Bid Request relates in accordance with this SECTION
2.6.
(c) (i) Each Lender may at its discretion submit a Competitive
Bid containing an offer or offers to make Bid Loans in response to any
Invitation for Competitive Bids. Each Competitive Bid must comply
with the requirements of this SUBSECTION 2.6(c) and must be submitted
to the Administrative Agent by facsimile transmission at the
Administrative Agent's office for notices set forth on the signature
pages hereto not later than (i) 6:30 a.m. (San Francisco time) three
Business Days prior to the proposed date of Borrowing, in the case of
a Eurodollar Auction or (2) 6:30 a.m. (San Francisco time) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction;
PROVIDED that Competitive Bids submitted by the Administrative Agent
(or any Affiliate of the Administrative Agent) in the capacity of a
Lender may be submitted, and may only be submitted, if the
Administrative Agent or such Affiliate notifies the Revolving Borrower
of the terms of the offer or offers contained therein not later than
(A) 6:15 a.m. (San Francisco time) three Business Days prior to the
proposed date of Borrowing, in the case of a Eurodollar Auction or
(B) 6:15 a.m. (San Francisco time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the
form of EXHIBIT N, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for which
such Competitive Bid is being made, which principal amount
(x) may be equal to, greater than or less than the quoting
Lender's Percentage of the Revolving Commitment Amount, (y) must
be $5,000,000 or in multiples of $1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for
which Competitive Bids were requested;
(C) in case the Revolving Borrower elects a Eurodollar
Auction, the margin above or below the Eurodollar Rate (the
"EURODOLLAR BID MARGIN") offered for each such Bid Loan,
expressed in multiples of 1/1000th of one basis point to be added
to or subtracted from the applicable Eurodollar and the Interest
Period applicable thereto;
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(D) in case the Revolving Borrower elects an Absolute
Rate Auction, the fixed rate of interest per annum expressed in
multiples of 1/1000th of one basis point (the "ABSOLUTE RATE")
offered for each such Bid Loan; and
(E) the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the
quoting Lender with respect to each Interest Period specified in the
related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with EXHIBIT N
or does not specify all of the information required by SUBSECTION
(c)(ii) of this Section;
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in SUBSECTION
(c)(i).
(d) Promptly on receipt and not later than 7:00 a.m. (San Francisco
time) three Business Days prior to the proposed date of Borrowing in the case of
a Eurodollar Auction, or 7:00 a.m. (San Francisco time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction, the Administrative Agent
will notify the Revolving Borrower of the terms (i) of any Competitive Bid
submitted by a Lender that is in accordance with SUBSECTION 2.6(c), and (ii) of
any Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Lender with respect to the same
Competitive Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Administrative Agent unless such subsequent Competitive Bid
is submitted solely to correct a manifest error in such former Competitive Bid
and only if received within the times set forth in SUBSECTION 2.6(c). The
Administrative Agent's notice to the Revolving Borrower shall specify (1) the
aggregate principal amount of Bid Loans for which offers have been received for
each Interest Period specified in the related Competitive Bid Request; and (2)
the respective principal amounts and Eurodollar Bid Margins or Absolute Rates,
as the case may be, so offered. Subject only to the provisions of SECTIONS 5.1,
5.2 and 6.2
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hereof and the provisions of this SUBSECTION (d), any Competitive Bid shall
be irrevocable except with the written consent of the Administrative Agent
given on the written instructions of the Revolving Borrower.
(e) Not later than 7:30 a.m. (San Francisco time) three Business Days
prior to the proposed date of Borrowing, in the case of a Eurodollar Auction, or
7:30 a.m. (San Francisco time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction, the Revolving Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to SUBSECTION 2.6(d). The Revolving Borrower shall be under no
obligation to accept any offer and may choose to reject all offers. In the case
of acceptance, such notice shall specify the aggregate principal amount of
offers for each Interest Period that is accepted. The Revolving Borrower may
accept any Competitive Bid in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Bid Borrowing
may not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing must be
$5,000,000 or in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of
ascending Eurodollar Bid Margins or Absolute Rates within each
Interest Period, as the case may be; and
(iv) the Revolving Borrower may not accept any offer that
is described in SUBSECTION 2.6(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Lenders with the same
Eurodollar Bid Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Bid Loans in
respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not less than $1,000,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amounts of such offers.
Determination by the Administrative Agent of the amounts of Bid Loans shall be
conclusive in the absence of manifest error.
(g) (i) The Administrative Agent will promptly notify each Lender
having submitted a Competitive Bid if its offer
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has been accepted and, if its offer has been accepted, of the amount
of the Bid Loan or Bid Loans to be made by it on the date of the Bid
Borrowing.
(ii) Each Lender which has received notice pursuant to
SUBSECTION 2.6(g)(i) that its Competitive Bid has been accepted, shall
make the amounts of such Bid Loans available to the Administrative
Agent for the account of the Revolving Borrower by deposit to an
account designated by the Administrative Agent, by 11:00 a.m. (San
Francisco time) on such date of Bid Borrowing, in funds immediately
available to the Administrative Agent.
(iii) Promptly following each Bid Borrowing, the
Administrative Agent shall notify each Lender of the ranges of bids
submitted and the highest and lowest Bids accepted for each Interest
Period requested by the Revolving Borrower and the aggregate amount
borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Revolving Borrower and the
Lenders shall furnish such information to the Administrative Agent as
the Administrative Agent may request relating to the making of Bid
Loans, including the amounts, interest rates, dates of borrowings and
maturities thereof, for purposes of the allocation of amounts received
from the Revolving Borrower for payment of all amounts owing
hereunder.
(h) If, on or prior to the proposed date of Borrowing, the Revolving
Commitment Termination Date shall not have occurred and if, on such proposed
date of Borrowing all applicable conditions to funding referenced in
SECTIONS 5.1, 5.2 and 6.2 hereof are satisfied, the Lenders whose offers the
Revolving Borrower has accepted will fund each Bid Loan so accepted. Nothing in
this SECTION 2.6 shall be construed as a right of first offer in favor of the
Lenders or to otherwise limit the ability of the Revolving Borrower to request
and accept credit facilities from any Person (including any of the Lenders),
provided that no Default or Event of Default would otherwise arise or exist as a
result of the Revolving Borrower executing, delivering or performing under such
credit facilities.
SECTION 2.7 SWINGLINE LOANS.
(a) Subject to the terms and conditions hereof, the Swingline Lender
severally agrees to make a portion of the Revolving Commitment Amount available
to the Revolving Borrower by making swingline loans (individually, a "SWINGLINE
LOAN"; collectively, the "SWINGLINE LOANS") to the Revolving Borrower on any
Business Day prior to the Revolving Commitment Termination
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Date in accordance with the procedures set forth in this Section in an
aggregate principal amount at any one time outstanding not to exceed
$20,000,000, notwithstanding the fact that such Swingline Loans, when
aggregated with the Swingline Lender's outstanding Committed Loans, may
exceed the Swingline Lender's Commitment (the amount of such commitment of
the Swingline Lender to make Swingline Loans to the Revolving Borrower
pursuant to this SUBSECTION 2.7(a), as the same shall be reduced pursuant to
SUBSECTION 2.2.1) or as a result of any assignment pursuant to SECTION
11.11.1, the Swingline Lender's "SWINGLINE COMMITMENT"); PROVIDED, that at no
time shall (i) the sum of the outstanding principal amount of all Swingline
Loans PLUS the outstanding principal amount of all Committed Loans and Bid
Loans PLUS the Letter of Credit Outstandings exceed the Revolving Commitment
Amount, or (ii) the outstanding principal amount of all Swingline Loans
exceed the Swingline Commitment. Additionally, no more than four Swingline
Loans may be outstanding at any one time, and except as otherwise provided in
SECTION 3.2.2, all Swingline Loans shall at all times bear interest at a rate
per annum equal to the Alternate Base Rate unless otherwise agreed to by the
Swingline Lender in its sole discretion. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Revolving Borrower may
borrow under this SUBSECTION 2.7(a), repay pursuant to SECTION 3.1 and
reborrow pursuant to this SUBSECTION 2.7(a).
(b) The Revolving Borrower shall provide the Administrative Agent
(with a copy to the Swingline Lender) with irrevocable written notice (including
notice via telephone call confirmed immediately by facsimile) in the form of a
Borrowing Request of any Swingline Loan requested hereunder (which notice must
be received by the Swingline Lender and the Administrative Agent prior to 12:00
noon (San Francisco time) on the requested Borrowing date) specifying (i) the
amount to be borrowed, and (ii) the requested Borrowing date, which must be a
Business Day.
Upon receipt of the Borrowing Request, the Swingline Lender will
immediately confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of the Borrowing Request from
the Revolving Borrower, and, if not, the Swingline Lender will provide the
Administrative Agent with a copy thereof. Unless the Swingline Lender has
received notice prior to 2:00 p.m. on such Borrowing date from the
Administrative Agent (A) directing the Swingline Lender not to make the
requested Swingline Loan as a result of the limitations set forth in the PROVISO
set forth in the first sentence of SUBSECTION 2.7(a); or (B) that one or more
conditions specified in ARTICLE VI are not then satisfied; then, subject to the
terms and conditions hereof, the Swingline Lender will, not later than 3:00 p.m.
(San Francisco time) on the Borrowing date specified in such Borrowing Request,
make the amount of its Swingline Loan available to the Administrative Agent for
the
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account of the Revolving Borrower at an account designated by the
Administrative Agent in funds immediately available to the Administrative
Agent. The proceeds of such Swingline Loan will then promptly be made
available to the Revolving Borrower by the Administrative Agent crediting the
account of the Revolving Borrower on the books of BofA with the aggregate of
the amounts made available to the Administrative Agent by the Swingline
Lender and in like funds as received by the Administrative Agent. Each
Borrowing pursuant to this Section shall be in an aggregate principal amount
equal to two hundred fifty thousand dollars ($250,000) or an integral
multiple of one hundred thousand dollars ($100,000) in excess thereof, unless
otherwise agreed by the Swingline Lender.
(c) If (i) any Swingline Loans shall remain outstanding at 9:00 a.m.
(San Francisco time) on the Business Day immediately prior to a Swingline
Clean-Up Day and by such time on such Business Day the Administrative Agent
shall have received neither
(A) a Borrowing Request delivered pursuant to SECTION 2.3
requesting that Committed Revolving Loans be made pursuant to
SECTION 2.1 or Bid Loans be made pursuant to SECTION 2.5 on the
Swingline Clean-Up Day in an amount at least equal to the
aggregate principal amount of such Swingline Loans, nor
(B) any other notice indicating the Revolving Borrower's
intent to repay such Swingline Loans with funds obtained from
other sources, or
(ii) any Swingline Loans shall remain outstanding during the existence
of a Default or Event of Default and the Swingline Lender shall in its sole
discretion notify the Administrative Agent that the Swingline Lender
desires that such Swingline Loans be converted into Committed Revolving
Loans,
then the Administrative Agent shall be deemed to have received a Borrowing
Request from the Revolving Borrower pursuant to SECTION 2.3 requesting that Base
Rate Committed Revolving Loans be made pursuant to SECTION 2.1 on such Swingline
Clean-Up Day (in the case of the circumstances described in CLAUSE (i) above) or
on the first Business Day subsequent to the date of such notice from the
Swingline Lender (in the case of the circumstances described in CLAUSE (ii)
above) in an amount equal to the aggregate amount of such Swingline Loans, and
the procedures set forth in SUBSECTIONS 2.3 shall be followed in making such
Base Rate Committed Loans; PROVIDED that such Base Rate Committed Revolving
Loans shall be made notwithstanding the Revolving Borrower's failure to comply
with SECTION 6.2.1; and PROVIDED, FURTHER, that
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if a Borrowing of Committed Revolving Loans becomes legally impracticable and
if so required by the Swingline Lender at the time such Committed Revolving
Loans are required to be made by the Lenders in accordance with this
SUBSECTION 2.7(c), each Lender agrees that in lieu of making Committed
Revolving Loans as described in this SUBSECTION 2.7(c), such Lender shall
purchase a participation from the Swingline Lender in the applicable
Swingline Loans in an amount equal to such Lender's Percentage of such
Swingline Loans, and the procedures set forth in SECTION 2.3 shall be
followed in connection with the purchases of such participations. Upon such
purchases of participations, the prepayment requirements of SUBSECTION 3.1(d)
shall be deemed waived with respect to such Swingline Loans. The proceeds of
such Base Rate Committed Revolving Loans, or participations purchased, shall
be applied to repay such Swingline Loans. A copy of each notice given by the
Administrative Agent to the Lenders pursuant to this SUBSECTION 2.7(c) with
respect to the making of Committed Revolving Loans, or the purchases of
participations, shall be promptly delivered by the Administrative Agent to
the Revolving Borrower. Each Lender's obligation in accordance with this
Agreement to make the Committed Revolving Loans, or purchase the
participations, as contemplated by this SUBSECTION 2.7(c), shall be absolute
and unconditional and shall not be affected by any circumstance, including
(1) any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Swingline Lender, the Revolving Borrower or any
other Person for any reason whatsoever; (2) the occurrence or continuance of
a Default, an Event of Default or a Material Adverse Effect; or (3) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 2.8 FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make Bid Loans or Swingline Loans based on the Eurodollar Rate or
to make, continue or convert Eurodollar Committed Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Bid Loan, Swingline Loan or
Eurodollar Committed Loan; PROVIDED, HOWEVER, that such Loan shall nonetheless
be deemed to have been made and to be held by such Lender, and the obligation of
the applicable Borrower to repay such Loan shall nevertheless be to such Lender
for the account of such foreign branch, Affiliate or international banking
facility. In addition, each Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of SECTION 5.1, 5.2, 5.3,
5.4 or 5.11, it shall be conclusively assumed that each Lender elected to fund
all Bid Loans and Swingline Loans based on the Eurodollar Rate and all
Eurodollar Committed Loans by purchasing Dollar deposits in its Eurodollar
Office's interbank eurodollar market.
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SECTION 2.9 NOTES. (a) The Loans made by each Lender shall be evidenced by
one or more loan accounts or records maintained by such Lender in the ordinary
course of business. The loan accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Loans made by the Lenders to each Borrower and the interest
and payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of such Borrower
hereunder to pay any amount owing with respect to the Loans.
(b) Upon the request of any Lender made through the Administrative Agent,
the Committed Loans made by such Bank may be evidenced by one or more Committed
Loan Notes and the Bid Loans made by such Lender may be evidenced by one or more
applicable notes ("BID LOAN NOTES"), instead of or in addition to loan accounts.
Each such Lender shall endorse on the schedules annexed to its Note(s) the date,
amount and maturity of each Loan made by it and the amount of each payment of
principal made by the applicable Borrower with respect thereto. Each such
Lender is irrevocably authorized by the applicable Borrower to endorse its
Note(s) and each Lender's record shall be conclusive absent manifest error;
PROVIDED, HOWEVER, that the failure of a Lender to make, or an error in making,
a notation thereon with respect to any Loan shall not limit or otherwise affect
the obligations of the applicable Borrower hereunder or under any such Note to
such Lender.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1 REPAYMENTS AND PREPAYMENTS. Each Borrower shall repay in full
the unpaid principal amount of each Loan made to it upon the Stated Maturity
Date therefor. Prior thereto
(a) each Borrower may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Loans; PROVIDED, HOWEVER, that
(i) any such prepayment of a Loan (other than a Bid Loan or a
Swingline Loan) shall be made PRO RATA among Loans of the same Type
and, if applicable, having the same Interest Period of all Lenders;
(ii) any such prepayment of any Loan (other than a Base Rate
Committed Loan or a Swingline Loan based on the Alternate Base Rate)
made on any day other than the last day of the Interest Period for
such Loan shall be subject to such Borrower's obligation to make
payment,
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if requested by any Lender, of an additional amount equal to
the amount due under SECTION 5.4 incurred as a result of such
prepayment being so made at such time;
(iii) all such prepayments shall require at least three but no
more than five Business Days' prior written notice (except in the case
of Base Rate Committed Loans and Swingline Loans based upon the
Alternate Base Rate which shall require one Business Day's prior
written notice) to the Administrative Agent and such notice of
prepayment shall be irrevocable and shall specify (i) the date and
amount of such prepayment, and (ii) whether such payment is of Base
Rate Committed Loans, Eurodollar Committed Loans or Swingline Loans,
or any combination thereof;
(iv) all such prepayments (A) in the case of Loans other than
Swingline Loans, shall be in an aggregate minimum amount of $5,000,000
(or if less, the aggregate outstanding amount of all Loans) and an
integral multiple of $1,000,000, and (B) in the case of Swingline
Loans, shall be in an aggregate minimum amount of $250,000 (or if
less, the aggregate outstanding amount of such Swingline Loan) and an
integral multiple of $100,000; and
(v) notwithstanding the terms of SECTION 5.4(a), Bid Loans may
not be voluntarily prepaid.
(b) the Revolving Borrower shall, on each date when any reduction in
the Revolving Commitment Amount shall become effective, including pursuant
to SECTION 2.2, make a mandatory prepayment (which shall be applied (or
held for application and bear interest at the rate applicable under SECTION
4.7) as the case may be, by the Lenders first to the payment of the
aggregate unpaid principal amount of those Revolving Loans then
outstanding, and then to the payment of the then outstanding Letter of
Credit Outstandings) equal to the excess, if any, of the aggregate,
outstanding principal amount of all Revolving Loans and Letter of Credit
Outstandings over the Revolving Commitment Amount as so reduced;
(c) each Borrower shall, immediately upon any acceleration of the
Stated Maturity Date of any Revolving Loans or Term Loans pursuant to
SECTION 9.2 or SECTION 9.3, repay all such Loans, unless, pursuant to
SECTION 9.3, only a portion of all such Loans is so accelerated;
(d) the Revolving Borrower shall make a mandatory prepayment of
Swingline Loans (A) if following any reduction of the Swingline Commitment
pursuant to SUBSECTION 2.2.1 the
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aggregate outstanding principal amount of Swingline Loans would exceed
the Swingline Commitment as reduced, on the reduction date in an amount
equal to the excess of the Swingline Loans over the Swingline
Commitment, and (B) so that for at least one Business Day during each
successive two calendar week period the aggregate principal amount of
Swingline Loans shall be $0 (a "SWINGLINE CLEAN-UP DAY"), the Revolving
Borrower shall prepay on the Swingline Clean-Up Day the outstanding
principal amount of the Swingline Loans (which Swingline Loans may not
be reborrowed until such Swingline Clean-Up Day has ended); and
(e) shall repay each Bid Loan on the last day of the relevant
Interest Period.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 5.4. No voluntary
prepayment of principal of any Revolving Loans shall cause a reduction in the
Revolving Commitment Amount.
SECTION 3.2 INTEREST PROVISIONS. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this SECTION 3.2.
SECTION 3.2.1 RATES. Bid Loans shall accrue interest at the applicable
Eurodollar Rate PLUS the Eurodollar Bid Margin, in the case of a Eurodollar Bid
Loan, and at the Absolute Rate, in the case of any Absolute Rate Bid Loan, in
each case as determined in accordance with SECTION 2.6. Each Swingline Loan
shall bear interest on the principal amount thereof from the date when made
until such Loan becomes due at a rate PER ANNUM equal to the Alternate Base Rate
or such other rate agreed to by the Swingline Lender in its sole discretion.
Pursuant to an appropriately delivered Borrowing Request or
Continuation/Conversion Notice, each Borrower may elect that its Committed Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate
Committed Loan, equal to the Alternate Base Rate from time to time in
effect; and
(b) on that portion maintained as a Eurodollar Committed Loan, during
each Interest Period applicable thereto, equal to the sum of the Eurodollar
Rate (Reserve Adjusted) for such Interest Period plus a margin equal to the
Applicable Margin in effect on the date such Eurodollar Committed Loan is
made.
The applicable margin to be added to each Eurodollar Committed Loan (the
"APPLICABLE MARGIN") will be determined by the
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Administrative Agent from time to time in accordance with the table set forth
below based on the Compliance Certificate delivered by the Revolving Borrower
for the calendar quarter immediately preceding such time (the "PRECEDING
QUARTER") under CLAUSE (c) of SECTION 8.1.1. Such determination shall be
based on the calculation of the Consolidated Funded Debt to Cash Flow Ratio
set forth in the Compliance Certificate for the Preceding Quarter and shall
apply from and including the Business Day such Compliance Certificate is
delivered until but excluding the Business Day the Compliance Certificate is
delivered for the calendar quarter immediately following the Preceding
Quarter; PROVIDED that the Applicable Margin for any day after the
forty-fifth day of any calendar quarter during which the Revolving Borrower
shall not deliver a Compliance Certificate shall be 1.0% PER ANNUM effective
until the day such certificate is delivered. The Applicable Margin for the
period from the Restatement Effective Date until but excluding the Business
Day the first Compliance Certificate is delivered hereunder shall be based
upon the Compliance Certificate most recently delivered under the Original
Credit Agreement prior to the Restatement Effective Date. The ratios set
forth in the table below are for the purpose of interest calculation only and
shall not affect the Revolving Borrower's obligation to comply with SECTION
8.2.4.
Ratio Applicable Margin
----- -----------------
Less than 1.00:1 0.35%
1.00:1 or greater and less than
1.50:1 0.40%
1.50:1 or greater and less than
2.00:1 0.50%
2.00:1 or greater and less than
2.50:1 0.625%
2.50:1 or greater 0.875%
The "EURODOLLAR RATE (RESERVE ADJUSTED)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a Eurodollar Committed Loan
for any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
Eurodollar Rate = EURODOLLAR RATE
(Reserve Adjusted) ------------------------------------
1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate (Reserve Adjusted) for any Interest Period for Eurodollar
Committed Loans will be determined by the Administrative Agent on the basis of
the Eurodollar Reserve Percentage in effect on, and the applicable rates
furnished to
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and received by the Administrative Agent from its Eurodollar office, two
Business Days before the first day of such Interest Period.
"EURODOLLAR RATE" means the rate of interest PER ANNUM determined by the
Administrative Agent as the rate at which dollar deposits in the approximate
amount of any Loan to bear interest at a rate based upon the Eurodollar Rate or
BofA's Eurodollar Committed Loan, as applicable, for such Interest Period would
be offered by BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such other
office as may be designated for such purpose by BofA), to major banks in the
offshore dollar interbank market at their request at approximately 11:00 a.m.
(New York City time) two Business Days prior to the commencement of such
Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, relative to any Interest Period for
Eurodollar Committed Loans, the reserve percentage (expressed as a decimal and
rounded upward to the nearest 1/100th of 1%) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under regulations issued
from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
All Eurodollar Committed Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
Eurodollar Committed Loan.
The foregoing adjustment of the Eurodollar Rate on the basis of the
Eurodollar Reserve Percentage in order to determine the Eurodollar Rate (Reserve
Adjusted) shall be made by the Administrative Agent upon notice from time to
time by a Lender that it has become subject to reserves under applicable F.R.S.
Board regulations in respect of "Eurocurrency Liabilities" and that it shall
require compensation for costs it has incurred during an Interest Period as a
consequence of maintaining such reserves during such Interest Period. Such
compensation shall be limited to the actual costs of such reserves determined by
such Lender to be allocable to its Eurodollar Committed Loan or Loans. Any
determination by a Lender of the amount of such reserves shall, in the absence
of manifest error, be final, conclusive and binding on all of the parties
hereto.
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SECTION 3.2.2 POST-DEFAULT RATE. At any time when any Event of Default
shall occur and be continuing, upon the request of the Administrative Agent, at
the direction of the Majority Lenders, each Borrower shall pay, but only to the
extent permitted by law, interest (after as well as before judgment) on its
Loans and all other amounts due from it hereunder at the following rates: (i)
with respect to any amount payable on or in connection with a Base Rate
Committed Loan or Swingline Loan, from the date of such Event of Default until
such amount is paid in full, at a rate PER ANNUM equal to the sum of the
Alternate Base Rate in effect from time to time (but not less than the Alternate
Base Rate in effect at such date), or, in the case of any Swingline Loan, such
other rate at which such Loan bears interest, PLUS 2.0% PER ANNUM (the
"POST-DEFAULT RATE"),(ii) with respect to any amount payable on or in connection
with a Eurodollar Committed Loan or a Bid Loan, from the date of such Event of
Default until the end of the Interest Period for such Loan, at a rate PER ANNUM
equal to the sum of the applicable Eurodollar Rate (Reserve Adjusted), in the
case of a Eurodollar Committed Loan or the applicable Absolute Rate or
Eurodollar Rate PLUS the applicable Eurodollar Bid Margin in the case of any
Eurodollar Bid Loan PLUS, in each such case, 3.0% PER ANNUM, and, thereafter, at
the Post-Default Rate until such amount is paid in full, and (iii) with respect
to any other amount payable hereunder, from the date of such Event of Default
until such amount is paid in full, at the Post-Default Rate.
SECTION 3.2.3 PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any optional or required payment or prepayment, in
whole or in part, of principal outstanding on such Loan;
(c) with respect to Base Rate Committed Loans, and Bid Loans that
accrue interest at the Absolute Rate, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to Eurodollar Committed Loans, or any Bid Loan or
Swingline Loan that accrues interest at a rate based upon the Eurodollar
Rate on the last day of each applicable Interest Period (and, if such
Interest Period shall exceed three months, on the date which would have
been the last day in an Interest Period of three months);
(e) with respect to any Base Rate Committed Loans converted into
Eurodollar Committed Loans on a day when interest would not otherwise have
been payable pursuant to CLAUSE (c), on the date of such conversion; and
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(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to SECTION 9.2 or SECTION 9.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4 INTEREST RATE (CANADA).
For the purpose of the Interest Act (Canada) only, where interest is
calculated based on a year comprised of 360 days, 365 days, or 366 days, the
yearly rate or percentage of interest to which such interest rate is equivalent,
is the rate obtained by multiplying the rate by the actual number of days in the
year and dividing by 360, 365 or 366 as the case may be.
SECTION 3.3 FEES. Each Borrower agrees to pay the fees set forth in this
SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1 COMMITMENT FEES.
(a) The Revolving Borrower agrees to pay to the Administrative Agent for
the account of each Lender, for the period (including any portion thereof when
any of its Commitments are suspended by reason of the Revolving Borrower's
inability to satisfy any condition of ARTICLE VI) commencing on the Original
Effective Date and continuing through the final Revolving Commitment Termination
Date, a commitment fee on such Lender's Percentage of the sum of the average
daily unused portion of the Revolving Commitment Amount (as in effect from time
to time since the Original Effective Date) calculated at the rates PER ANNUM
determined from time to time for the Current Fiscal Quarter in accordance with
the table set forth below in CLAUSE (c) and the Compliance Certificate delivered
by the Revolving Borrower pursuant to CLAUSE (c) of SECTION 8.1.1. The amount
of any outstanding Bid Loans and Swingline Loans shall be disregarded for
purposes of calculating any Lender's Percentage of the average daily unused
portion of the Revolving Commitment Amount in accordance with the preceding
sentence except that, in determining such Percentage of the average daily unused
portion for any such Lender for any day, the outstanding principal amount of any
Bid Loans of such Lender on such day shall be subtracted from its Percentage of
the unused portion of the Revolving Commitment Amount in effect on such day.
(b) The determination of the commitment fee shall be based on the
calculation of the Consolidated Funded Debt to Cash Flow Ratio set forth in the
Compliance Certificate for the Preceding
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Quarter and shall apply from and including the Business Day such Compliance
Certificate is delivered until but excluding the Business Day the Compliance
Certificate for the calendar quarter immediately following the Preceding
Quarter is delivered. The Consolidated Funded Debt to Cash Flow Ratio for
the period from the Restatement Effective Date to but excluding the Business
Day the first Compliance Certificate is delivered hereunder shall be the
latest Consolidated Funded Debt to Cash Flow Ratio determined under the
Original Credit Agreement. Subject to the terms of SECTION 2.2.2 hereof,
such commitment fees shall be payable by the Revolving Borrower in arrears on
each Quarterly Payment Date, commencing on June 30, 1997, and on the
Commitment Termination Date and shall be determined on the basis of a 360 day
year.
(c) The ratios set forth in the table below are for the purpose of the
commitment fee calculation only and shall not affect the Revolving Borrower's
obligation to comply with SECTION 8.2.4.
Ratio Per Annum Commitment Fee
----- ------------------------
Less than 1.00:1 0.125%
1.00:1 or greater and
less than 1.50:1 0.15%
1.50:1 or greater and
less than 2.00:1 0.175%
2.00:1 or greater and
less than 2.50:1 0.20%
2.50:1 or greater 0.25%
The Commitment Fee rate applicable for any day after the forty-fifth day of
any quarter of any calendar year during which the Revolving Borrower does not
deliver a Compliance Certificate, effective until the day such certificate is
delivered, shall be the highest rate set forth above.
SECTION 3.3.2 PARTICIPATION FEES. On the Restatement Effective Date, the
Revolving Borrower agrees to pay to the Administrative Agent for the account of
each Lender based upon the relative amount of such Lender's incremental
Commitments, an up-front participation fee in an amount as calculated as set
forth in the term sheet dated February 27, 1997 distributed to each Lender
together with related materials describing the transactions contemplated by this
Agreement.
SECTION 3.3.3 [RESERVED].
SECTION 3.3.4 CO-AGENT'S FEES. The Revolving Borrower agrees to pay to
the Co-Agents the non-refundable agency fee and certain other fees (including
bid auction fees) in the amounts
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and at the times set forth in a fee letter dated March 10, 1997 between the
Revolving Borrower, the Co-Agent, BancAmerica Securities, Inc. and
Nationsbank Capital Markets, Inc.
SECTION 3.3.5 LETTER OF CREDIT FACE AMOUNT FEE. The Revolving Borrower
shall pay to the Administrative Agent for the benefit of the Lenders letter of
credit fees per annum based on the average daily maximum amount available to be
drawn on the outstanding Letters of Credit, payable quarterly in arrears on each
Quarterly Payment Date, commencing on June 30, 1997, and determined on the basis
of a 360 day year. The applicable fees will be determined by the Administrative
Agent from time to time for the Current Quarter in accordance with the table set
forth below based on the Compliance Certificate delivered by the Revolving
Borrower for the Preceding Quarter under CLAUSE (c) of SECTION 8.1.1. Such
determination shall be based on the calculations of the Consolidated Funded Debt
to Cash Flow Ratio set forth in the Compliance Certificate for the Preceding
Quarter and shall apply from and including the Business Day such Compliance
Certificate is delivered until but excluding the Business Day the Compliance
Certificate for the calendar quarter immediately following the Preceding Quarter
is delivered. The Consolidated Funded Debt to Cash Flow Ratio for the period
from the Restatement Effective Date to but excluding the Business Day the first
Compliance Certificate is delivered hereunder shall be the latest Consolidated
Funded Debt to Cash Flow Ratio determined under the Original Credit Agreement.
The ratios set forth in the table below are for the purpose of letter of credit
fee calculation only and shall not affect the Revolving Borrower's obligations
to comply with SECTION 8.2.4.
Per Annum Letter
Ratio of Credit Fee
----- ----------------
Less than 1.00:1 0.35%
1.00:1 or greater
and less than 1.50:1 0.40%
1.50:1 or greater
and less than 2.00:1 0.50%
2.00:1 or greater
and less than 2.50:1 0.625%
2.50:1 or greater 0.875%
The Letter of Credit Fee rate applicable under this SECTION 3.3.5 (i) upon
the request of the Administrative Agent, at the direction of the Majority
Lenders, for any day during which an Event of Default shall occur and be
continuing shall be 2.0% PER ANNUM, and (ii) for every day after the forty-fifth
day of any calendar quarter of any calendar year during which the Revolving
Borrower does not deliver a Compliance Certificate, effective
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until the day such certificate is delivered, shall be the highest rate set
forth above.
SECTION 3.3.6 LETTER OF CREDIT ISSUING FEE. The Revolving Borrower agrees
to pay to the Administrative Agent, for the account of the applicable Issuer, an
issuing fee for each Letter of Credit for the period from and including the date
of issuance of such Letter of Credit to (but not including) the date upon which
such Letter of Credit expires, of 0.125% PER ANNUM of the face amount of such
Letter of Credit and the Revolving Borrower further agrees to pay to the
Administrative Agent, for the account of the applicable Issuer, such Issuer's
customary administrative and processing fees and out-of-pocket expenses relating
to such Letter of Credit. Such issuing fee shall be determined on the basis of
a 360 day year, and together with other amounts shall be payable by the
Revolving Borrower in arrears on each Quarterly Payment Date, commencing on June
30, 1997, and on the Commitment Termination Date for any period then ending for
which such fee shall not theretofore have been paid, commencing on the first
such date after the issuance of such Letter of Credit.
ARTICLE IV
LETTERS OF CREDIT
SECTION 4.1 ISSUANCE REQUESTS. By delivering to the Administrative Agent
and the applicable Issuer an Issuance Request on or before 10:00 a.m. San
Francisco time, the Revolving Borrower may request, from time to time prior to
the Commitment Termination Date and on not less than three nor more than fifteen
Business Days' notice, that such Issuer issue an irrevocable standby letter of
credit (each a "LETTER OF CREDIT"), in support of financial obligations of any
Borrower or its Subsidiaries incurred in such Borrower's or such Subsidiary's
ordinary course of business or in connection with an Approved Acquisition and
which are described in such Issuance Request. Upon receipt of an Issuance
Request, the Administrative Agent shall promptly notify the Lenders thereof.
Each Letter of Credit shall by its terms:
(a) be issued in a Stated Amount which
(i) is at least $100,000; and
(ii) does not exceed (or would not exceed) the then Letter of
Credit Availability; and
(b) be stated to expire on a date (its "STATED EXPIRY DATE") no later
than fifteen days prior to the then Revolving Commitment Termination Date.
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So long as no Default has occurred and is continuing, by delivery to the
applicable Issuer and the Administrative Agent of an Issuance Request at least
five but not more than fifteen Business Days prior to the earlier of (i) the
Stated Expiry Date of any Letter of Credit and (ii) (if such Letter of Credit
contains provisions for automatic extension or renewal unless the Issuer advises
the beneficiary thereof that such Letter of Credit will not be extended or
renewed) the date upon which in accordance with the terms of such Letter of
Credit, the Issuer must provide notice to the Revolving Borrower that such
Letter of Credit will expire without renewal on the Stated Expiry Date, the
Revolving Borrower may request such Issuer to extend the Stated Expiry Date of
such Letter of Credit to a date no later than fifteen days prior to the then
Revolving Commitment Termination Date. Notwithstanding any provision contained
in the foregoing to the contrary, the Revolving Borrower may not request the
issuance of, and no Issuer shall have an obligation to issue, any Letter of
Credit at any time when, or if after giving effect to such issuance, and so long
as, the Letter of Credit Outstandings shall equal or exceed $30,000,000.
SECTION 4.2 ISSUANCES AND EXTENSIONS.
(a) On the terms and subject to the conditions of this Agreement
(including ARTICLE VI), the Issuer shall issue Letters of Credit, and extend the
Stated Expiry Dates of outstanding Letters of Credit, in accordance with the
Issuance Requests made therefor. Each Issuer will make available the original
of each Letter of Credit which it issues in accordance with the Issuance Request
therefor to the beneficiary thereof (and will promptly provide the Revolving
Borrower and each of the Lenders with a copy of such Letter of Credit) and will
notify the beneficiary under any Letter of Credit of any extension of the Stated
Expiry Date or other renewal thereof.
(b) No Issuer is under any obligation to issue any 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 Issuer from
issuing such Letter of Credit, or any Applicable Law with respect to the
Issuer or any request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the Issuer shall by
its terms purport to direct the Issuer to refrain from the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuer is not
otherwise compensated hereunder) not in effect on the Restatement Effective
Date, or shall impose upon the Issuer any unreimbursed loss, cost or
expense which was not
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applicable on the Original Effective Date and which the Issuer in good
faith deems material to it (unless the Revolving Borrower elects to pay
such losses, costs and expenses);
(ii) the Issuer has received written notice from any Lender, the
Administrative Agent or the Revolving Borrower, on or prior to the Business
Day prior to the requested date of issuance of such Letter of Credit, that
one or more of the applicable conditions contained in ARTICLE VI is not
then satisfied;
(iii) the expiry date of any requested Letter of Credit is prior to
the maturity date of any financial obligation to be supported by the
requested Letter of Credit;
(iv) any requested Letter of Credit is not in form and substance
acceptable to the Issuer, or the issuance of a Letter of Credit shall
violate any applicable policies of the Issuer; or
(v) any standby Letter of Credit is for the purpose of supporting the
issuance of any letter of credit by any other Person.
(c) SCHEDULE IV hereto sets forth each irrevocable standby letter of
credit issued pursuant to the Original Credit Agreement and outstanding on the
date hereof. Each such irrevocable standby letter of credit listed on SCHEDULE
IV hereto shall, as of the Restatement Effective Date and thereafter, be a
Letter of Credit for all purposes hereunder.
SECTION 4.3 EXPENSES. The Revolving Borrower agrees to pay to the
Administrative Agent for the account of the applicable Issuer(s) all
administrative expenses of such Issuer(s) in connection with the issuance,
maintenance, modification (if any) and administration of each Letter of Credit
issued by such Issuer(s) upon demand from time to time.
SECTION 4.4 OTHER LENDERS' PARTICIPATION.
(a) Each Letter of Credit issued pursuant to SECTION 4.2 shall, effective
upon its issuance and without further action, be issued on behalf of all Lenders
(including the Issuer thereof) PRO RATA according to their respective
Percentages. Each Lender shall, to the extent of its Percentage, be deemed
irrevocably to have participated in the issuance of such Letter of Credit
(including, without limitation, Letters of Credit issued prior to the
Restatement Effective Date) and shall be responsible to reimburse promptly the
Issuer thereof for Reimbursement Obligations which have not been reimbursed by
the Revolving Borrower in accordance with SECTION 4.5, or which have been
reimbursed by the Revolving
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Borrower but must be returned, restored or disgorged by such Issuer for any
reason, and each Lender shall, to the extent of its Percentage, be entitled
to receive from the Administrative Agent a ratable portion of the letter of
credit fees received by the Administrative Agent pursuant to SECTION 3.3.4,
with respect to each Letter of Credit and which accrue on or after the
Restatement Effective Date.
(b) In the event that the Revolving Borrower shall fail to reimburse any
Issuer, or if for any reason Loans shall not be made to fund any Reimbursement
Obligation, all as provided in SECTION 4.5 and in an amount equal to the amount
of any drawing honored by such Issuer under a Letter of Credit issued by it, or
in the event such Issuer must for any reason return or disgorge such
reimbursement, such Issuer shall promptly notify each Lender of the unreimbursed
amount of such drawing and of such Lender's respective participation therein.
Each Lender shall make available to such Issuer, whether or not any Default
shall have occurred and be continuing, an amount equal to its respective
participation in same day or immediately available funds at the office of such
Issuer specified in such notice not later than 9:00 a.m., San Francisco time, on
the Business Day (under the laws of the jurisdiction of such Issuer) after the
date notified by such Issuer.
(c) In the event that any Lender fails to make available to any Issuer the
amount of such Lender's participation in any Letter of Credit as provided
herein, such Issuer shall be entitled to recover such amount on demand from such
Lender together with interest at the daily average Federal Funds Rate for three
Business Days (together with such other compensatory amounts as may be required
to be paid by such Lender to the Administrative Agent pursuant to the Rules for
Interbank Compensation of the council on International Banking or the
Clearinghouse Compensation Committee, as the case may be, as in effect from time
to time) and thereafter at the Alternate Base Rate.
(d) Nothing in this SECTION 4.4 shall be deemed to prejudice the right of
any Lender to recover from any Issuer any amounts made available by such Lender
to such Issuer pursuant to this Section in the event that it is finally
determined by a court of competent jurisdiction that the payment with respect to
a Letter of Credit by such Issuer in respect of which payment was made by such
Lender constituted gross negligence or wilful misconduct on the part of such
Issuer. Each Issuer shall distribute to each other Lender which has paid all
amounts payable by it under this SECTION 4.4 with respect to any Letter of
Credit issued by such Issuer such other Lender's Percentage of all payments
received by such Issuer from the Revolving Borrower
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in reimbursement of drawings honored by such Issuer under such Letter of
Credit when such payments are received.
SECTION 4.5 DISBURSEMENTS. Each Issuer will notify the Revolving Borrower
and the Administrative Agent promptly of the presentment for payment of any
Letter of Credit, together with notice of the date (a "DISBURSEMENT DATE") such
payment shall be made. Subject to the terms and provisions of such Letter of
Credit, the applicable Issuer shall make such payment to the beneficiary (or its
designee) of such Letter of Credit. Prior to 10:00 a.m., San Francisco time, on
the Disbursement Date, the Revolving Borrower will reimburse the applicable
Issuer for all amounts which it has disbursed or is required to disburse under
the Letter of Credit on such date. To the extent the applicable Issuer is not
reimbursed in full in accordance with the THIRD SENTENCE of this Section, the
Revolving Borrower's Reimbursement Obligation shall accrue interest at a
fluctuating rate equal to the Alternate Base Rate through and including the
first Business Day after the Disbursement Date, and thereafter at a fluctuating
rate equal to the Alternate Base Rate plus a margin of 2.0% PER ANNUM, in each
case, payable on demand. The Revolving Borrower may borrow Revolving Loans
hereunder in order to pay any Reimbursement Obligation, subject to the terms and
conditions hereof (except for the minimum amounts for Borrowings set forth in
SECTION 2.3) including satisfaction of the conditions set forth in SECTION 6.2,
PROVIDED, HOWEVER, for the purpose of determining the availability of the
Commitments to make Revolving Loans immediately prior to giving effect to the
application of the proceeds of such Revolving Loans, such Reimbursement
Obligation shall be deemed not to be outstanding at such time.
SECTION 4.6 REIMBURSEMENT. The Revolving Borrower's obligation (a
"REIMBURSEMENT OBLIGATION") under SECTION 4.5 to reimburse an Issuer with
respect to each Disbursement (including interest thereon), and each Lender's
obligation to make participation payments in each drawing which has not been
reimbursed by the Revolving Borrower, shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, recoupment,
counterclaim, or defense to payment which the Revolving Borrower may have or
have had against any Lender or any beneficiary of a Letter of Credit, including
any defense based upon the occurrence of any Default, any draft, demand or
certificate or other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient, the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the applicable
Issuer's good faith opinion, such Disbursement is determined to be appropriate)
or any non-application or misapplication by the beneficiary of the proceeds of
such Disbursement, or the legality, validity, form, regularity, or
enforceability of such Letter of Credit; PROVIDED, HOWEVER, that nothing herein
shall adversely affect the right of the Revolving Borrower to commence any
proceeding
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against the applicable Issuer for any wrongful Disbursement made by such
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct on the part of such Issuer.
SECTION 4.7 DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default after the Restatement Effective Date or the
occurrence of the Revolving Commitment Termination Date, an amount equal to that
portion of Letter of Credit Outstandings attributable to outstanding and undrawn
Letters of Credit shall, at the election of the applicable Issuer acting on
instructions from the Majority Lenders, and without demand upon or notice to the
Revolving Borrower, be deemed to have been paid or disbursed by such Issuer
under such Letters of Credit (notwithstanding that such amount may not in fact
have been so paid or disbursed), and, upon notification by such Issuer to the
Administrative Agent and the Revolving Borrower of its obligations under this
Section, the Revolving Borrower shall be immediately obligated to pay to the
Administrative Agent, the amount deemed to have been so paid or disbursed by
such Issuer. Any amounts so received by the Administrative Agent from the
Revolving Borrower pursuant to this SECTION 4.7 shall be held by the
Administrative Agent in a segregated account as collateral security for the
repayment of the Revolving Borrower's Obligations in connection with the Letters
of Credit issued by such Issuer and, subject to the prior payment of such
Obligations, the other Obligations of the Revolving Borrower. The Revolving
Borrower hereby assigns and pledges to the Administrative Agent, for the benefit
of the applicable Issuer, and hereby grants to the Administrative Agent, for the
benefit of the applicable Issuer, a security interest in and lien upon such
account and all deposits in such account, all investments arising out of such
funds, all claims thereunder or in connection therewith and all cash,
securities, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of such account, such
funds or such investments. At such time when all Events of Default shall have
been cured or waived, the Administrative Agent shall return to the Revolving
Borrower all amounts then on deposit with the Administrative Agent pursuant to
this Section. All amounts on deposit pursuant to this Section shall, until
their application to any Reimbursement Obligation or other Obligation or their
return to the Revolving Borrower, as the case may be, bear interest at the daily
average Federal Funds Rate from time to time in effect (net of the costs of any
reserve requirements, in respect of amounts on deposit pursuant to this Section,
pursuant to F.R.S. Board Regulation D), which interest shall be held by the
Administrative Agent as additional collateral security for the repayment of the
Obligations.
SECTION 4.8 NATURE OF REIMBURSEMENT OBLIGATIONS. The Revolving
Borrower shall assume all risks of the acts, omissions,
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or misuse of any Letter of Credit by the beneficiary thereof. Neither any
Issuer nor any Lender (except to the extent of its own gross negligence or
wilful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex, or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit
or of the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the vesting of any of the
rights or powers granted any Issuer or any Lender hereunder. In furtherance and
extension, and not in limitation or derogation, of any of the foregoing, any
action taken or omitted to be taken by any Issuer in good faith shall be binding
upon the Revolving Borrower and shall not put such Issuer under any resulting
liability to the Revolving Borrower.
SECTION 4.9 INDEMNITY. The Revolving Borrower hereby agrees to protect,
indemnify, pay and save each Issuer, the Administrative Agent and each Lender
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees and
allocated costs of internal counsel) which such Issuer, Co-Agent or Lender may
incur or be subject to as a consequence, direct or indirect, of
(a) the issuance of the Letters of Credit, other than as a result of
the gross negligence or wilful misconduct of
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such Issuer, the Administrative Agent or Lender as determined by a court
of competent jurisdiction, or
(b) the failure of such Issuer, the Administrative Agent or Lender to
honor a drawing under any Letter of Credit as a result of any applicable
act or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority.
SECTION 4.10 CONFLICTS WITH LETTER OF CREDIT RELATED DOCUMENTS. In the
event of any conflict between this Agreement and any of the agreements and
instruments entered into by the Revolving Borrower with (or in favor of) any
Issuer and relating to any Letter of Credit (other than the Letter of Credit
itself), including any Issuance Request, this Agreement shall control.
ARTICLE V
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
SECTION 5.1 EURODOLLAR RATE LENDING UNLAWFUL. If any Lender shall
determine (which determination shall, upon notice thereof to each Borrower and
the Lenders, be conclusive and binding on such Borrower) that the introduction
of or any change in or in the interpretation of any law makes it unlawful, or
any central bank or other governmental authority asserts that it is unlawful,
for such Lender to make Bid Loans based upon the Eurodollar Rate or to make,
continue or maintain any Loan as, or to convert any Loan into, a Eurodollar
Committed Loan of a certain Type, the obligations of such Lender to make,
continue, maintain or convert into any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist, and all outstanding Bid Loans based upon the Eurodollar Rate and all
outstanding Eurodollar Committed Loans made by such Lender shall automatically
convert into Base Rate Committed Loans at the end of the then current Interest
Periods with respect thereto or sooner, if required by such law or assertion.
SECTION 5.2 DEPOSITS UNAVAILABLE. If the Majority Lenders shall have
determined that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in its
relevant market; or
(b) by reason of circumstances affecting their relevant eurodollar
markets, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Bid
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Loans based on the Eurodollar Rate or to Eurodollar Committed Loans,
then, upon notice from the Administrative Agent to each Borrower and the
Lenders, the obligations of all Lenders under SECTION 2.3 and SECTION 2.4 to
make any Bid Loans based on the Eurodollar Rate or to make or continue any Loans
as, or to convert any Loans into, Eurodollar Committed Loans shall forthwith be
suspended until the Administrative Agent shall notify such Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 5.3 INCREASED EURODOLLAR LOAN COSTS, ETC. Each Borrower agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or, if applicable, of converting (or of its obligation
to convert) any Loans into, Bid Loans based on the Eurodollar Rate or Eurodollar
Committed Loans. Such Lender shall promptly notify the Administrative Agent and
each Borrower in writing of the occurrence of any such event, such notice to
state, in reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount (which shall include calculations in reasonable detail). Such additional
amounts shall be payable by each Borrower directly to such Lender within five
Business Days of its receipt of such notice, and such notice shall, in the
absence of manifest error, be conclusive and binding on such Borrower.
SECTION 5.4 FUNDING LOSSES. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or, if
applicable, to convert any portion of the principal amount of any Loan into, a
Bid Loan based upon the Eurodollar Rate or a Eurodollar Committed Loan) as a
result of
(a) any conversion or repayment or prepayment of the principal amount
of any Bid Loans or Eurodollar Committed Loans on a date other than the
scheduled last day of the Interest Period applicable thereto, whether
pursuant to SECTION 3.1 or otherwise;
(b) any Loans not being made in accordance with the Borrowing Request
therefor; or
(c) any Loans not being continued as, or converted into, Eurodollar
Committed Loans in accordance with the Continuation/Conversion Notice
therefor; or
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(d) receipt by such Lender of a payment in respect of its Loans on a
date other than the scheduled last day of an Interest Period applicable
thereto as a consequence of the assignments which take place on the
Restatement Effective Date pursuant to SECTION 5.13,
then, upon the written notice of such Lender to each Borrower (with a copy to
the Administrative Agent), which notice shall set forth the basis for requesting
such reimbursement, such Borrower shall, within five Business Days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense incurred with respect to Loans to such Borrower. Such written notice
(which shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on such Borrower.
SECTION 5.5 INCREASED CAPITAL COSTS. If any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in since the Restatement Effective Date of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other governmental authority
affects or would affect the amount of capital required or expected to be
maintained by any Lender or any Person controlling such Lender, and such Lender
determines (in its sole and absolute discretion) that the rate of return on its
or such controlling Person's capital as a consequence of its Commitments,
issuance of or participation in Letters of Credit or the Loans made by such
Lender is reduced to a level below that which such Lender or such controlling
Person could have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by such Lender to each
Borrower, such Borrower shall, within five Business Days of its receipt thereof
pay directly to such Lender additional amounts sufficient to compensate such
Lender or such controlling Person for such reduction in rate of return with
respect to such Borrower. A statement of such Lender as to any such additional
amount or amounts (including calculations thereof in reasonable detail) shall,
in the absence of manifest error, be conclusive and binding on each Borrower.
In determining such amount, such Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.
SECTION 5.6 TAXES. (a) All payments by each Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-
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excluded items being called "TAXES"). In the event that any withholding or
deduction from any payment to be made by either Borrower hereunder is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then such Borrower will
(i) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the applicable Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by such person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
person would have received had not such Taxes been asserted.
(b) If the applicable Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, for
the account of the Administrative Agent or Lenders, the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and Lenders for any incremental Taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. For purposes of this SECTION 5.6, a distribution
hereunder by the Administrative Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the applicable Borrower.
Each Lender that is organized under the laws of a jurisdiction other than
the United States shall, prior to the date such Lender becomes a party to this
Agreement and in a timely fashion thereafter, execute and deliver to each
Borrower and the Administrative Agent, one or more (as such Borrower or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents),
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appropriately completed, as may be applicable to establish the extent, if
any, to which a payment to such Lender is exempt from withholding or
deduction of Taxes.
SECTION 5.7 PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by each Borrower pursuant to this Agreement, the Notes or
any other Loan Document shall be made by such Borrower to the Administrative
Agent for the PRO RATA account of the Lenders entitled to receive such payment.
All such payments required to be made to the Administrative Agent shall be made,
without setoff, deduction or counterclaim, not later than 9:00 a.m., San
Francisco time, on the date due, in same day or immediately available funds, to
such account as the Administrative Agent shall specify from time to time by
notice to such Borrower. Funds received after that time shall be deemed to have
been received by the Administrative Agent on the next succeeding Business Day.
The Administrative Agent shall promptly remit in same day funds to each Lender
its share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Committed
Loan (other than when calculated with respect to the Federal Funds Rate), 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by CLAUSE (c) of the definition of the term
"INTEREST PERIOD" with respect to Eurodollar Committed Loans) be made on the
next succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
SECTION 5.8 SHARING OF PAYMENTS. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Committed Loan (other than pursuant to the terms of
SECTIONS 5.3, 5.4 and 5.5) or Letter of Credit in excess of its PRO RATA share
of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in Committed Loans made by
them and/or Letters of Credit as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
PROVIDED, HOWEVER, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
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(a) the amount of such selling Lender's required repayment to the
purchasing Lender
TO
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including set-off, but subject to SECTION 5.9) with respect to such
participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 5.9 SET-OFF. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists, each Lender is
authorized at any time and from time to time, without prior notice to either
Borrower, any such notice being waived by such Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of each Borrower against any and all Obligations owing to such Lender by
such Borrower, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify each Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
SECTION 5.9 are in addition to the other rights and remedies (including other
rights of set-off) which the Lender may have. Any Lender or Swingline Lender
having outstanding Committed Loans, Swingline Loans and Bid Loans at any time a
right of set-off is exercised by such Lender or Swingline Lender shall apply the
proceeds of such set-off first to such Lender's Committed Loans, until its
Committed Loans are reduced to zero, then to its Swingline Loans, and thereafter
to its Bid Loans. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE, OR
ATTEMPT TO EXERCISE, ANY RIGHT OF SET-OFF, BANKER'S LIEN, OR THE
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LIKE ARISING UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS AGAINST ANY
DEPOSIT ACCOUNT OR PROPERTY OF EITHER BORROWER OR ANY SUBSIDIARY OF SUCH
BORROWER HELD OR MAINTAINED BY THE LENDER WITHOUT THE PRIOR WRITTEN CONSENT
OF THE MAJORITY LENDERS AND THE ADMINISTRATIVE AGENT.
SECTION 5.10 USE OF PROCEEDS. Each Borrower shall apply the proceeds of
each Borrowing in accordance with RECITAL G, PROVIDED, that, without limiting
the foregoing, no proceeds of any Loan will be used to acquire or carry any
equity security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, or any "margin stock", as defined
in F.R.S. Board Regulation U except for Approved Acquisitions in compliance with
F.R.S. Board Regulation U.
SECTION 5.11 OTHER INCREASED COSTS. If by reason of
(a) any change in applicable law, regulation, rule, decree or
regulatory requirement or any change in the interpretation or application
by any judicial or regulatory authority of any law, regulation, rule,
decree or regulatory requirement, or
(b) compliance by any Lender or any Issuer with any direction, request
or requirement (whether or not having the force of law) of any governmental
or monetary authority, including Regulation D of the F.R.S. Board:
(i) any Lender or any Issuer shall be subject to any tax (other
than taxes on net income and franchises), levy, charge or withholding
of any nature or to any variation thereof or to any penalty with
respect to the maintenance or fulfillment of its obligations under
this Agreement, whether directly or by such being imposed on or
suffered by such Lender or Issuer;
(ii) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letters of Credit
issued by any Issuer or participations therein purchased by any Lender
or any Commitment or Loans made by any Lender, but excluding with
respect to any Eurodollar Committed Loan any such requirement included
in the calculation of the Eurodollar Rate (Reserve Adjusted); or
(iii) there shall be imposed on any Issuer any other condition
regarding any Letter of Credit or any other condition on any Lender
regarding this Agreement, any Commitment and Loans and any
participation in any Letter of Credit;
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and the result of the foregoing is directly or indirectly to increase the cost
to such Issuer or such Lender of issuing, making or maintaining its Commitment,
any Loans or any Letter of Credit or of purchasing or maintaining any
participation therein or making any Loan or to reduce any amount receivable in
respect of any such Letter of Credit or any such Commitment or Loan by such
Issuer or such Lender, as applicable, then and in any such case such Issuer or
such Lender, as applicable, may, at any time after the additional cost is
incurred or the amount received is reduced, notify each Borrower thereof, and
such Borrower shall pay on demand such amounts as such Issuer or Lender, as
applicable, may specify to be necessary to compensate such Issuer or Lender, as
applicable, for such additional cost or reduced receipt attributable to such
Borrower, together with interest on such amount from the date demanded until
payment in full thereof at a rate equal at all times to the Alternate Base Rate.
The determination by such Issuer or Lender, as applicable, of any amount due
pursuant to this Section, as set forth in a statement setting forth the
calculation thereof in reasonable detail, shall, in the absence of manifest
error, be final and conclusive and binding on all of the parties hereto.
SECTION 5.12 OBLIGATION TO MITIGATE; SUBSTITUTION OF LENDERS. (a) Each
Lender agrees that as promptly as practicable after it becomes aware of the
occurrence of an event that would entitle it to give notice pursuant to this
ARTICLE V, and in any event if so requested by either Borrower, each Lender
shall use reasonable efforts to make, fund or maintain its affected Loans based
on the Eurodollar Rate through another Domestic Office, or a lending office
outside of the United States, if as a result thereof the increased costs would
be avoided or materially reduced or the illegality would thereby cease to exist
and if, in the opinion of such Lender, the making, funding or maintaining of
such Loans through such other office would not be disadvantageous to such Lender
or contrary to such Lender's normal banking practices.
(b) Upon the receipt by either Borrower from any Lender (an "AFFECTED
LENDER") of a request for compensation or payment under this ARTICLE V, such
Borrower may: (i) request one or more of the other Lenders to acquire and
assume (in such Lender's sole discretion) all or part of such Affected Lender's
Loans and Commitments or Swingline Commitment, as the case may be; or (ii)
designate a replacement bank or financial institution to acquire and assume all
or part of such Affected Lender's Loans and Commitments or Swingline Commitment,
as the case may be. Any such designation of a replacement bank or financial
institution under CLAUSE (ii) shall be subject to the prior written consent of
the Administrative Agent and the other Lenders (which consent shall not be
unreasonably withheld). Nothing in this CLAUSE (b) shall relieve either
Borrower of any obligation to pay any
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amounts accrued under this ARTICLE V prior to the date any Lender is replaced.
SECTION 5.13 CERTAIN RESTATEMENT EFFECTIVE DATE TRANSITIONAL MATTERS.
(a) On the Restatement Effective Date, each Lender hereby sells and
assigns, without recourse, an amount of Loans equal to the product of (i)
the excess (if any) of its Original Percentage over its Restated Percentage
times (ii) the aggregate principal amount of Loans outstanding on such date
and each Lender hereby purchases an amount of Loans equal to the product of
(i) the excess (if any) of its Restated Percentage over its Original
Percentage times (ii) the aggregate principal amount of Loans outstanding
on such date. Each Lender selling Loans under this SECTION 5.13 shall be
deemed to have sold (and each Lender purchasing Loans shall be deemed to
have purchased) a PRO RATA portion (based on the aggregate principal amount
of Loans then outstanding) of each of such selling Lender's Loans.
Payments by each Lender purchasing Loans under this SECTION 5.13 shall be
made to the Administrative Agent not later than 9:00 a.m., San Francisco
time in immediately available funds, without setoff, deduction or
counterclaim, for the PRO RATA account (based upon the outstanding
principal amount of Loans being sold) of each selling Lender in an amount
equal to the aggregate principal amount of outstanding Loans purchased by
such Lender.
(b) On and after the Restatement Effective Date, each Lender shall be
entitled to receive commitment fees under SECTION 3.3.1, letter of credit
fees under SECTION 3.3.5 and interest on Loans and on any other amount due
under any Loan Document, in each case, (i) accrued and unpaid before the
Restatement Effective Date in accordance with its Original Percentage and
at the applicable rates then in effect under the Original Credit Agreement
and (ii) accrued on and after the Restatement Effective Date in accordance
with its Restated Percentage and at the applicable rates under this
Agreement.
(c) Each Lender acknowledges and agrees that in accordance with
SECTION 4.4 it shall be deemed to have participated in the issuance of each
Letter of Credit issued pursuant to SECTION 4.2 (including, without
limitation, Letters of Credit issued prior to the Restatement Effective
Date) in accordance with its Restated Percentage.
(d) On and after the Restatement Effective Date, to the extent that
any commitment and the other rights and obligations of any Lender existing
at the time immediately preceding the Restatement Effective Date have been
assigned
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or delegated, as applicable, to any Lender under this Agreement, such
Lender hereby assumes such commitment and other obligations and shall
have the rights and obligations of a Lender hereunder and under the other
Loan Documents and, to the extent that any commitment and other obligations
of any Lender existing at the time immediately preceding the Restatement
Effective Date have been delegated by any Lender pursuant to this
Agreement, such Lender shall be released from such commitment and its
obligations thereunder and under the other Loan Documents.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1 CONDITIONS TO RESTATEMENT EFFECTIVE DATE. Unless otherwise
terminated pursuant to SECTION 6.4, this Agreement shall become effective on the
date (the "RESTATEMENT EFFECTIVE DATE") the conditions precedent set forth in
this SECTION 6.1 have been satisfied:
SECTION 6.1.1 AGREEMENT. The Administrative Agent shall have received
counterparts hereof executed on behalf of each Borrower, each Co-Agent and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent.
SECTION 6.1.2 RESOLUTIONS, ETC. The Administrative Agent shall have
received from each Obligor a certificate, dated the Restatement Effective Date,
of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers or other
designees authorized to act with respect to this Agreement, the Notes and
each other Loan Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Obligor canceling or
amending such prior certificate.
SECTION 6.1.3 DELIVERY OF NOTES. Upon request of any Lender pursuant to
SECTION 2.9(b) and on reasonable notice to the Revolving Borrower prior to the
Restatement Effective Date, the Administrative Agent shall have received or made
arrangements to receive within a reasonable time following the Restatement
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Effective Date (in exchange for Notes previously delivered by the Borrowers
under the Original Credit Agreement) for the account of such Lender, its
Revolving Note and/or Term Note payable to the order of such Lender in a maximum
principal amount equal to such Lender's Commitment as to Committed Revolving
Loans and/or Committed Term Loans, as applicable, in effect as of the
Restatement Effective Date and duly executed and delivered by the applicable
Borrower.
SECTION 6.1.4 GUARANTEES. The Administrative Agent shall have received
(a) (i) the Confirmation of Guaranty, dated as of the date hereof, duly executed
and delivered by each Significant Subsidiary that is a party to the "Guaranty"
contemplated by the Original Credit Agreement and (ii) the Guaranty, dated as of
the date hereof, duly executed and delivered by each other Significant
Subsidiary organized under the laws of the United States, and (b) the
Confirmation of Fibreboard Guaranty, dated the date hereof, duly executed on
behalf of the Revolving Borrower.
SECTION 6.1.5 OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions, dated the date of the Restatement Effective Date and
addressed to the Co-Agents and all Lenders, from
(a) Brobeck, Phleger and Harrison LLP, counsel to the Obligors, in
substantially the form of EXHIBIT E-1 hereto;
(b) Fraser & Beatty, Canadian counsel to the Term Borrower, in
substantially the form of EXHIBIT E-2 hereto; and
(c) Mayer, Brown & Platt, special counsel to the Administrative
Agent, in substantially the form of EXHIBIT F hereto.
SECTION 6.1.6 SOLVENCY, VALUATION, ETC. The Administrative Agent shall
have received a certificate of an Authorized Officer of each Borrower, which
officer shall be the chief accounting or financial Authorized Officer, dated the
Restatement Effective Date, substantially in the form of EXHIBIT G.
SECTION 6.1.7 PURCHASE OF LOANS, CLOSING FEES, EXPENSES, ETC. The
Administrative Agent shall have received for its own account, or for the account
of the applicable Lender or the Documentation Agent, as the case may be, all
payments due on the Restatement Effective Date from any Lender in respect of
Loans assigned pursuant to SECTION 5.13 and all fees, costs and expenses due and
payable pursuant to SECTIONS 3.3 and 11.3, if then invoiced.
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SECTION 6.1.8 AUDITORS OPINION. The Administrative Agent shall have
received a copy, certified as true and correct by the chief financial officer of
the Revolving Borrower, of the opinion letter of Arthur Andersen LLP dated
__________ with respect to the December 31, 1995 audited annual consolidated
financial statements of the Revolving Borrower which removed the Asbestos
Qualification from Arthur Andersen LLP's previous opinion with respect to such
financial statements.
SECTION 6.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to make any Credit Extension (including the initial Credit Extension on
or after the Restatement Effective Date) and the obligation of any Lender to
make any Bid Loan as to which the Revolving Borrower has accepted the relevant
Competitive Bid shall be subject to the satisfaction of each of the conditions
precedent set forth in this SECTION 6.2.
SECTION 6.2.1 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in SECTION 9.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds of any Borrowing) the following statements shall be
true and correct
(a) the representations and warranties set forth in ARTICLE VII
(excluding, however, those contained in SECTION 7.7) shall be true and
correct (both before and after giving PRO FORMA effect to any Acquisition
to be financed with the proceeds of such Credit Extension) with the same
effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall be true and correct
as of such earlier date); PROVIDED that SECTION 7.5 shall be deemed to
refer to the most recent date of the delivery of the financial statements
referred to therein;
(b) except as disclosed by each Borrower to the Administrative Agent
and the Lenders pursuant to SECTION 7.7
(i) no labor controversy, litigation, arbitration or governmental
investigation or proceeding shall be pending or, to the knowledge of
such Borrower, threatened against such Borrower or any of its
Subsidiaries which (A) if determined adversely to such Borrower or
such Subsidiary, as the case may be, could reasonably be expected to
have a Material Adverse Effect or (B) which purports to affect the
legality, validity or enforceability of this Agreement, the Notes or
any other Loan Document; and
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(ii) no development shall have occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to SECTION 7.7 which if determined adversely to
such Borrower or any of its Subsidiaries, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) no Default shall have then occurred and be continuing, and neither
of the Borrowers nor any of their respective Significant Subsidiaries are
in material violation of any applicable law or governmental regulation or
court order or decree; and
(d) there exists no Material Post-Collateral Release Asbestos
Litigation.
SECTION 6.2.2 CREDIT REQUEST. The Administrative Agent shall have
received a Borrowing Request or Issuance Request, as the case may be, from the
applicable Borrower for such Credit Extension. Each of the delivery of a
Borrowing Request or an Issuance Request and the acceptance by the applicable
Borrower of the proceeds of the Borrowing or the issuance of the Letter of
Credit, as applicable, shall constitute a representation and warranty by such
Borrower that on the date of such Borrowing (both immediately before and after
giving effect to such Borrowing and the application of the proceeds thereof) or
the issuance of the Letter of Credit, as applicable, the statements made in
SECTION 6.2.1 are true and correct.
SECTION 6.2.3 SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant hereto by or on behalf of each Borrower or any of its
Subsidiaries shall be satisfactory in form and substance to the Administrative
Agent and its counsel.
SECTION 6.3 NOTICE OF RESTATEMENT EFFECTIVE DATE. Upon satisfaction of
all the conditions set forth in SECTION 6.1, the Administrative Agent shall
deliver to each Borrower, the Documentation Agent and each Lender a notice
stating that such conditions have been satisfied and setting forth the
Restatement Effective Date.
SECTION 6.4 FAILURE TO REACH RESTATEMENT EFFECTIVE DATE. If all the
conditions set forth in SECTION 6.1 shall not have been satisfied on or prior to
April 30, 1997 this Agreement shall be of no further force or effect unless each
Lender and the Administrative Agent shall have consented, in writing, to an
extension of such date. Prior to the Restatement Effective Date (or if the
Restatement Effective Date does not occur) the Original Credit Agreement shall
continue in effect according to its terms.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Co-Agents to enter into this
Agreement and to make Loans and issue Letters of Credit hereunder, each Borrower
represents and warrants unto the Co-Agents and each Lender as set forth in this
ARTICLE VII.
SECTION 7.1 ORGANIZATION, ETC. Each Borrower and each of its Subsidiaries
is a corporation validly organized and existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in which a
failure to have such authority could reasonably be expected to have a Material
Adverse Effect, and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its
Obligations under this Agreement, the Notes and each other Loan Document to
which it is a party and to own and hold under lease its property and to conduct
its business substantially as currently conducted by it.
SECTION 7.2 DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it are within such Borrower's and each such Obligor's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
(a) contravene such Borrower's or any such Obligor's Organic
Documents;
(b) contravene (i) any material contractual restriction, or (ii) any
law or governmental regulation or court decree or order binding on or
affecting such Borrower or any such Obligor; or
(c) result in, or require the creation or imposition of, any Lien on
any of such Borrower's or any Obligor's properties.
SECTION 7.3 GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority or regulatory body or other Person is required for the due execution,
delivery or performance by each Borrower or any other Obligor of this Agreement,
the Notes or any other Loan Document to which it is a party. Neither of the
Borrowers nor any of their respective Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding
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company", or a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
SECTION 7.4 VALIDITY, ETC. Each Loan Document executed by an Obligor
will, on the due execution and delivery thereof, constitute, the legal, valid
and binding obligations of such Obligor enforceable in accordance with its
respective terms, except as such enforceability thereof may be limited by (a)
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
SECTION 7.5 FINANCIAL INFORMATION. The consolidated balance sheets of the
Revolving Borrower and its Subsidiaries as at December 31, 1995, and September
30, 1996 and, in each case, the related statements of income, stockholders'
equity, if applicable, and cash flows of such Borrower and its Subsidiaries
(which, in the case of such December 31, 1995 financial statements, have been
examined without qualification by Arthur Andersen LLP), copies of which have
been furnished to the Administrative Agent and each Lender, have been prepared
in accordance with GAAP consistently applied (except, in the case of the
September 30, 1996 quarterly financial statements, for the absence of notes
thereto and for year-end adjustments), and present fairly the consolidated
financial condition of the corporations covered thereby as at the dates thereof
or, as the case may be, the results of their operations for the periods then
ended.
SECTION 7.6 NO MATERIAL ADVERSE CHANGE. Since December 31, 1995, there
has been no material adverse change in the financial condition, operations,
assets, business, properties or (but only with respect to Asbestos Litigation
related matters) prospects of the Revolving Borrower and its Subsidiaries, taken
as a whole.
SECTION 7.7 LITIGATION, LABOR CONTROVERSIES, ETC. Except as disclosed in
ITEM 7.7 ("Litigation") of the Disclosure Schedule, there is no pending or, to
the knowledge of each Borrower, threatened litigation, action, proceeding, or
labor controversy affecting such Borrower or any of its Subsidiaries, or any of
their respective properties, businesses, assets or revenues, which, if
determined adversely to such Borrower or such Subsidiaries could reasonably be
expected to have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Agreement, the Notes or any other
Loan Document. There is no Material Post-Collateral Release Asbestos
Litigation.
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SECTION 7.8 SUBSIDIARIES. Each Borrower has no Subsidiaries, except those
Subsidiaries
(a) which are identified in ITEM 7.8 ("Existing Subsidiaries") of the
Disclosure Schedule or successors thereto; or
(b) the establishment or acquisition of which would not contravene the
terms of this Agreement.
SECTION 7.9 OWNERSHIP OF PROPERTIES. Except as set forth in ITEM 7.9
("Ownership of Properties") of the Disclosure Schedule, each Borrower and each
of its Subsidiaries owns good and marketable title to all of their properties
and assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like) except as permitted
pursuant to SECTION 8.2.3 or, in the case of claims, charges or defaults to
title to any such property or assets not constituting Liens as permitted
pursuant to SECTION 8.2.3, where the existence thereof could not give rise to a
Material Adverse Effect.
SECTION 7.10 TAXES. Each Borrower and each of its Subsidiaries has filed
all income and other material tax returns and reports required by law to have
been filed by it and has paid all taxes and governmental charges thereby shown
to be owing, except any such taxes or charges which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 7.11 PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Borrowing hereunder after the
Restatement Effective Date, no steps have been taken to terminate any Pension
Plan, and no contribution failure has occurred with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA. No condition
exists or event or transaction has occurred with respect to any Pension Plan
which might result in the incurrence by either Borrower or any member of the
Controlled Group of any material liability, fine or penalty. Except as
disclosed in ITEM 7.11 ("Employee Benefit Plans") of the Disclosure Schedule,
neither of the Borrowers nor any member of the Controlled Group of either
Borrower has any contingent liability with respect to any post-retirement
benefit under a Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
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SECTION 7.12 ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM 7.12
("Environmental Matters") of the Disclosure Schedule, to the best of each
Borrower's knowledge:
(a) all facilities and property (including underlying groundwater)
owned or leased by such Borrower or any of its Subsidiaries have been, and
continue to be, owned or leased by such Borrower and its Subsidiaries in
compliance with all Environmental Laws unless the failure to so comply
would not, or could not reasonably be expected to, have a Material Adverse
Effect;
(b) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by such Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to such Borrower or any of
its Subsidiaries regarding potential liability under any Environmental
Law
which, in any such case, could, if determined adversely to such Borrower or
its Subsidiary, as the case may be, reasonably be expected to have a
Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or under
any property now or previously owned or leased by such Borrower or any of
its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;
(d) such Borrower and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses and
other authorizations required by any Environmental Law, except for any such
permits, certificates, approvals, licenses or other authorizations the
possible consequences of the failure to obtain or comply with which could
not reasonably be expected to have a Material Adverse Effect;
(e) no property now or previously owned or leased by such Borrower or
any of its Subsidiaries is listed or (with respect to owned property only)
proposed for listing on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list of sites requiring investigation
or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under
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any property now or previously owned or leased by such Borrower or any
of its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;
(g) neither Borrower nor any Subsidiary of either Borrower has
directly transported or directly arranged for the transportation of any
Hazardous Material, other than asbestos, to any location which is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations which
may lead to material claims against either Borrower or such Subsidiary
thereof for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA other than with respect to Asbestos
Litigation; and
(h) there are no polychlorinated biphenyls or friable asbestos present
at any property now or previously owned or leased by either Borrower or any
Subsidiary of either Borrower that, singly or in the aggregate, have, or
could reasonably be expected to have, a Material Adverse Effect.
SECTION 7.13 REGULATIONS G, U AND X. Neither Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board Regulation G, U or X. Terms for
which meanings are provided in F.R.S. Board Regulation G, U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 7.14 ACCURACY OF INFORMATION. All factual information heretofore
or contemporaneously furnished by or on behalf of each Borrower in writing to
either Co-Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of each Borrower in writing to
either Co-Agent or any Lender will be, taken as a whole, true and accurate in
every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by each
Co-Agent and such Lender, and such information is not, or shall not be, as the
case may be, in light of the circumstances in which furnished, incomplete by
omitting to state any material fact necessary to make such information not
misleading.
SECTION 7.15 COMPLIANCE OF LAWS. Except as disclosed in ITEM 7.15
("Compliance with Laws") of the Disclosure Schedule, each Borrower and its
Subsidiaries is, and will on the Restatement Effective Date (both before and
after giving effect
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to the transactions contemplated hereby) be, in compliance with the
requirements of all Applicable Laws (including maintenance of all necessary
permits, approvals, certificates, licenses and other authorization relating
thereto), except for any noncompliance which does not have, and could not
reasonably be expected to have, a Material Adverse Effect.
SECTION 7.16 ABSENCE OF DEFAULT. Neither Borrower nor any of its
Subsidiaries is in default in the payment of, or in default in any material
respect in the performance of, any obligation applicable to any outstanding
Indebtedness.
SECTION 7.17 FINANCIAL CONDITION. After giving effect to the incurrence
by each Borrower and each Obligor of the Obligations and other transactions
contemplated to occur on the date hereof and on the date of each Credit
Extension:
(a) the net worth of each Borrower and each Obligor determined in
accordance with GAAP, consistently applied, will not be less than zero,
(b) the respective assets of each Borrower and each Obligor, at fair
valuation, will exceed its respective liabilities, including contingent
liabilities,
(c) the respective capital of each Borrower and each Obligor will not
be unreasonably small to conduct its respective business, and
(d) none of the Borrowers nor any other Obligor will have incurred
debts, or intends to incur debts, beyond its respective ability to pay such
debts as they mature.
For purposes of this Section, "debt" means any liability with respect to (a) a
right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (b) a right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
SECTION 7.18 SETTLEMENT AGREEMENTS. Except for the Settlement Agreements,
as of the Restatement Effective Date, neither Borrower nor any of its
Subsidiaries is a party to any material agreement relating to Asbestos
Litigation to which one or more Insurers is a party (except for any agreement
related to the Revolving Borrower's "Structured Settlement Program" or its
"Insurance Assignment Program" or any third party agreement pursuant to which
the Revolving Borrower and CNA Casualty have settled any Personal Injury
Asbestos Claim on terms which are no
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less favorable to the Revolving Borrower than under any "Structured
Settlement Program" or its "Insurance Assignment Program").
SECTION 7.19 SUBSIDIARIES AND OBLIGORS. References in the representations
and warranties to Subsidiaries and Obligors shall be deemed to include any
Person which becomes a Subsidiary or Obligor on or after the Restatement
Effective Date, commencing with the making or deemed making of any such
representation or warranty in connection with the first Credit Extension which
relates to the Acquisition pursuant to which such Person becomes a Subsidiary,
or at the time such Person becomes an Obligor, as the case may be.
ARTICLE VIII
COVENANTS
SECTION 8.1 AFFIRMATIVE COVENANTS. Each Borrower agrees with each
Co-Agent and each Lender that, until all Commitments and the Swingline
Commitment have terminated, all Obligations have been paid and performed in
full, and all Letters of Credit have expired or are terminated, such Borrower
will perform or, as the case may be, comply with the obligations set forth in
this SECTION 8.1.
SECTION 8.1.1 FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. Each Borrower
will furnish, or will cause to be furnished, to the Administrative Agent copies
of the following financial statements, reports, notices and information:
(a) subject to SECTION 8.1.1(f), as soon as available and in any event
within 45 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year of each Borrower, a consolidated balance sheet of such
Borrower and its Subsidiaries as of the end of such Fiscal Quarter, a
consolidated statement of income of such Borrower and its Subsidiaries for
such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter, and a
consolidated statement of cash flows of such Borrower and its Subsidiaries
for the period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter certified by a senior financial
Authorized Officer of such Borrower;
(b) subject to SECTION 8.1.1(f), as soon as available and in any event
within 90 days after the end of each Fiscal Year of the Revolving Borrower,
a copy of the annual audit report for such Fiscal Year for the Revolving
Borrower and its Subsidiaries, including therein a consolidated balance
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sheet of the Revolving Borrower and its Subsidiaries as of the end of such
Fiscal Year and consolidated statements of stockholders' equity, income and
cash flows of the Revolving Borrower and its Subsidiaries for such Fiscal
Year, in each case certified (without any Impermissible Qualification) in a
manner acceptable to the Administrative Agent and the Majority Lenders by
Arthur Andersen LLP or other independent public accountants acceptable to
the Administrative Agent and the Majority Lenders, together with (A) in the
case of the Revolving Borrower, a reliance agreement between the
Administrative Agent and such accounting firm in form and substance
satisfactory to the Administrative Agent, and (B) in the case of the
Revolving Borrower, a report from such accountants to the effect that, in
making the examination necessary for the signing of such annual report for
the Revolving Borrower by such accountants, they have reviewed computations
prepared by the Revolving Borrower showing compliance with each of the
financial ratios and restrictions contained in SECTION 8.2.4 and that such
accountants have not become aware of any Default that has occurred and is
continuing, or, if they have become aware of such Default, describing such
Default and the steps, if any, being taken to cure it; PROVIDED that such
accountants shall not be liable by reason of any failure to obtain
knowledge of any Default that would not be disclosed in the course of their
audit examination;
(c) as soon as available and in any event within 45 days after the end
of each Fiscal Quarter, a certificate (the "COMPLIANCE CERTIFICATE"),
executed by a senior Authorized Officer of the Revolving Borrower, showing
(in reasonable detail and with appropriate calculations and computations in
all respects satisfactory to the Administrative Agent) compliance with the
financial covenants set forth in SECTION 8.2.4 and compliance by the Term
Borrower and its Subsidiaries with the maximum Dollar Equivalent of
Indebtedness permitted in connection with any Qualified Working Capital
Facility;
(d) as soon as possible and in any event within three Business Days
after the occurrence of each Default, a statement of a senior financial
Authorized Officer of each Borrower setting forth details of such Default
and the action which such Borrower has taken and proposes to take with
respect thereto;
(e) as soon as possible and in any event within three days after (x)
the occurrence of any materially adverse development with respect to any
litigation, action, proceeding, or labor controversy described in SECTION
7.7 or (y) the commencement of any labor controversy, litigation, action,
proceeding of the type described in SECTION 7.7,
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notice thereof and if requested by the Majority Lenders, copies of such
pleadings or motions filed or served in connection therewith as the
Majority Lenders may reasonably request;
(f) promptly after the sending or filing thereof, copies of all
reports which each Borrower sends to any of its public securityholders
generally, and all reports and final registration statements (without
exhibits, unless requested by the Administrative Agent, at the request of
any Lender) which such Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission or any national securities exchange
(copies of all such reports provided to the Administrative Agent that
include the information to be provided pursuant to SECTION 8.1.1(a) or
8.1.1(b) shall be deemed to satisfy the requirements of SECTION 8.1.1(a) or
8.1.1(b), as the case may be);
(g) immediately upon becoming aware of the institution of any steps by
either Borrower or any other Person to terminate any Pension Plan (other
than any voluntary termination which does not result in any liability of
either Borrower or such Person), or the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give rise
to a Lien under section 302(f) of ERISA, or the taking of any action with
respect to a Pension Plan which could result in the requirement that either
Borrower furnish a bond or other security to the PBGC or such Pension Plan,
or the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by either Borrower of any material liability
(other than ongoing funding obligations and PBGC premiums), fine or
penalty, or any material increase in the contingent liability of either
Borrower with respect to any post-retirement Welfare Plan benefit, notice
thereof and copies of all documentation relating thereto;
(h) such other information respecting the condition or operations,
financial or otherwise, of each Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 8.1.2 COMPLIANCE WITH LAWS, ETC. Each Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon
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it or upon its property except to the extent being diligently contested
in good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books;
where the failure to so comply with any such laws, rules, regulations, or
orders, singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
SECTION 8.1.3 MAINTENANCE OF PROPERTIES AND EXISTING LINES OF BUSINESS.
Each Borrower will, and will cause each of its Subsidiaries to, maintain,
preserve, protect and keep its properties in good repair, working order and
condition, and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times and will not discontinue any Existing Lines of Business.
SECTION 8.1.4 INSURANCE. Each Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its properties and business (including
business interruption insurance) against such casualties and contingencies and
of such types and in such amounts as is customary in the case of similar
businesses and will, upon request of the Administrative Agent, furnish to each
Lender at reasonable intervals a certificate of an Authorized Officer of such
Borrower setting forth the nature and extent of all insurance maintained by such
Borrower and its Subsidiaries in accordance with this Section.
SECTION 8.1.5 BOOKS AND RECORDS. Each Borrower will, and will cause each
of its Subsidiaries to, keep books and records which accurately reflect all of
its business affairs and transactions and permit the Administrative Agent and
each Lender or any of their respective representatives, at reasonable times and
intervals, to visit all of its offices, to discuss its financial matters with
its officers and independent public accountant (and each Borrower hereby
authorizes such independent public accountant to discuss such Borrower's
financial matters with each Lender or its representatives whether or not any
representative of such Borrower is present) and to examine (and, at the expense
of such Borrower, photocopy extracts from) any of its books or other corporate
records. Each Borrower shall pay any fees of such independent public accountant
incurred in connection with the Administrative Agent's or any Lender's exercise
of its rights pursuant to this Section. Notwithstanding the foregoing
provisions of this section 8.1.5, neither Borrower shall be required to bear any
expense with respect to the foregoing unless an Event of Default exists.
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SECTION 8.1.6 ENVIRONMENTAL COVENANT. Each Borrower will, and will cause
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws;
(b) immediately notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or compliance
with Environmental Laws (other than with respect to Asbestos Litigation);
and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this SECTION 8.1.6;
except, in the case of the foregoing CLAUSE (a) or (b), with respect to
circumstances which could not reasonably be expected to have a Material Adverse
Effect.
SECTION 8.1.7 NEW SIGNIFICANT SUBSIDIARIES.
(a) Promptly after the date any Subsidiary of the Revolving Borrower
(other than the Term Borrower and any other Subsidiary organized under laws
other than those of any state or territory of the United States of America)
becomes a Significant Subsidiary and, in any event, within three Business Days
following receipt by the applicable Borrower from the Administrative Agent of a
guaranty of the Obligations in substantially the form of the Guaranty, the
applicable Borrower will cause such Subsidiary to execute and deliver such
guaranty to the Administrative Agent.
(b) Within sixty days after the date such Subsidiary becomes a Significant
Subsidiary, the applicable Borrower and such Subsidiary shall have executed and
delivered to the Administrative Agent and the Administrative Agent, such other
items as reasonably requested by the Administrative Agent or the Administrative
Agent in connection with the foregoing guaranty, including, without limitation,
resolutions, incumbency and officers certificates, opinions of counsel and other
certificates and documents.
SECTION 8.2 NEGATIVE COVENANTS. Each Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments and the
Swingline Commitment have terminated and all Obligations have been paid and
performed in full, and all Letters
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of Credit have expired or are terminated, such Borrower will comply with the
obligations set forth in this SECTION 8.2.
SECTION 8.2.1 BUSINESS ACTIVITIES. Each Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except the
Existing Lines of Business and business activities arising from Approved
Acquisitions.
SECTION 8.2.2 INDEBTEDNESS. The Revolving Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obligations;
(b) Indebtedness existing as of the Restatement Effective Date which
is identified in ITEM 8.2.2(b) ("ONGOING INDEBTEDNESS") of the Disclosure
Schedule;
(c) Indebtedness (including Capitalized Lease Liabilities) in an
aggregate principal amount not to exceed $10,000,000 (or the Dollar
Equivalent thereof) at any time outstanding which is purchase money
Indebtedness incurred for the acquisition of personal property, real
property or improvements thereto, provided that such Indebtedness is
incurred at the time of such acquisition or improvement or within thirty
days thereafter;
(d) unsecured Indebtedness incurred in the ordinary course of business
with respect to open accounts extended by suppliers on normal trade terms
in connection with purchases of goods and services, but excluding
Indebtedness incurred through the borrowing of money or Contingent
Liabilities;
(e) unsecured Indebtedness of either Borrower and its respective
Subsidiaries in an aggregate principal amount for all such Persons not to
exceed $10,000,000 at any time outstanding;
(f) Funded Debt of Persons acquired by the Revolving Borrower in
Approved Acquisitions which is in existence at the time of such Approved
Acquisitions and which is not incurred or created by such Persons in
connection with or in contemplation of such Approved Acquisitions;
(g) Indebtedness of the Revolving Borrower's Subsidiaries owing to the
Revolving Borrower, and unsecured Indebtedness of the Revolving Borrower
owing to any of its Subsidiaries;
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(h) [INTENTIONALLY OMITTED]
(i) (A) Guaranteed Facility Indebtedness of the Term Borrower
incurred in connection with a Qualified Working Capital Facility, (B)
Guaranteed Facility Indebtedness of any Subsidiary of the Term Borrower
incurred in connection with a Qualified Working Capital Facility or (C)
Indebtedness of the Term Borrower or any Subsidiary of the Term Borrower
incurred in connection with a Qualified Working Capital Facility; and
(j) Contingent Liabilities attributable to performance bonds
(including timber bonds issued for the benefit of the Revolving Borrower or
any of its Subsidiaries) not issued hereunder in an aggregate face amount
outstanding at any time not to exceed $10,000,000;
(k) Contingent Liabilities of the Revolving Borrower or the Term
Borrower in respect of the obligations of any of its Subsidiaries permitted
hereunder;
(l) extensions, renewals and refinancings of Indebtedness of the
Revolving Borrower or any Subsidiary of the type referred to in CLAUSES
(b), (c) and (f) above, PROVIDED that the principal amount of such
Indebtedness being extended, renewed or refinanced does not increase above
the amounts specified in the Disclosure Schedule or other writings referred
to in CLAUSE (b), the amount referred to in CLAUSE (c) or above the amounts
in existence at the time of the applicable Approved Acquisition, as the
case may be; and
(m) Hedging Obligations of the Revolving Borrower or any of its
Subsidiaries incurred (i) to hedge Obligations or (ii) in the ordinary
course of the Revolving Borrower's or such Subsidiary's business.
PROVIDED, HOWEVER, that no Indebtedness otherwise permitted by CLAUSES (c), (e),
(f), or (i) shall be permitted to be incurred if, after giving effect to the
incurrence thereof, any Default shall have occurred and be continuing.
SECTION 8.2.3 LIENS. The Revolving Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens, if any, securing payment of the Obligations, granted
pursuant to any Loan Document;
(b) Liens on the assets of the Term Borrower or any of its
Subsidiaries to secure payment of Guaranteed Facility
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Indebtedness of the Term Borrower or any such Subsidiary permitted in
CLAUSE (i) of SECTION 8.2.2;
(c) Liens granted to secure payment of Indebtedness of the type
permitted and described in CLAUSE (c) of SECTION 8.2.2 and covering only
those assets leased or acquired with the proceeds of such Indebtedness;
(d) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside
on its books;
(e) Liens imposed by law, such as carriers, warehousemen, mechanics,
lumberjacks, materialmen and landlords liens and other similar liens
incurred in the ordinary course of business for sums not more than 60 days
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(f) Liens incurred in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other forms of
governmental insurance or benefits;
(g) judgment Liens (i) in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed, or the payment
of which is covered in full by insurance maintained with responsible
insurance companies which have confirmed in writing (whether by settlement
agreement or other writing) their liability for the full amounts of such
judgments, or (ii) for payment of any order or judgment not in excess of
$10,000,000 (or the Dollar Equivalent thereof) which is not stayed by
reason of pending appeal, contract or otherwise so long as no enforcement
proceedings have been commenced;
(h) Liens covering assets or the assets of Persons acquired by the
Revolving Borrower in Approved Acquisitions and which were not incurred or
created in connection with or in contemplation of such Approved
Acquisitions; PROVIDED that the aggregate amount of such Liens does not at
any time exceed 15.0% of the Consolidated Net Worth of the Revolving
Borrower;
(i) Utility easements, rights of way, building restrictions and such
other encumbrances or charges against real property, and minor title
defects and irregularities, as are of a nature generally existing with
respect to
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properties of a similar character and which do not materially detract
from the value of the property subject thereto;
(j) Liens existing on the date hereof in respect of property, assets
or revenues of each Borrower or any of its Subsidiaries which are described
in ITEM 8.2.3(j) ("Ongoing Liens") of the Disclosure Schedule;
(k) Liens incurred in connection with the extension, renewal or
refinancing of the Indebtedness secured by the Liens described in CLAUSES
(c), (h), (i) and (j) above, PROVIDED that any extension, renewal or
replacement Lien shall be limited to (i) the property encumbered by the
existing Lien and (ii) to the existing amount of such Indebtedness (or, in
the case of a revolving credit, the existing commitment amount), except in
the case of CLAUSE (c) to the extent permitted by CLAUSE (c) of SECTION
8.2.2;
(l) Bankers' liens, rights of setoff and similar rights of banks and
other financial institutions;
(m) Any other consensual or nonconsensual Liens if the aggregate
amount of obligations of each Borrower or any of its Subsidiaries that is
secured by such Liens does not exceed $2,500,000 (or the Dollar Equivalent
thereof) for all such Persons in the aggregate at any time;
(n) Liens covering assets or the assets of Persons acquired by the
Revolving Borrower in Approved Acquisitions that are not otherwise
permitted by this SECTION 8.2.3 and that are (i) described in a schedule
delivered to the Administrative Agent no later than three Business Days
following the date such Approved Acquisition was consummated which shall
set forth the names of the debtor and secured party, the assets subject to
such lien and the principal amount of indebtedness secured by such lien;
and (ii) released and discharged and any UCC-3 or similar termination
statement filed within 60 days after the date such Approved Acquisition was
consummated; PROVIDED that, if for reasons beyond the control of the
Revolving Borrower and notwithstanding its good faith efforts, the
schedules, deliveries, releases, filings or other actions required by
CLAUSES (i) or (ii) have not been made or taken within the applicable time
period, the period during which such schedules, deliveries, releases,
filings or other actions shall be made or taken shall be extended to the
date 120 days after the date such Approved Acquisition was consummated;
PROVIDED, FURTHER, that in connection with any such extension, the
Revolving Borrower shall have provided evidence of such good faith efforts
reasonably satisfactory
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to the Administrative Agent, if so requested by the Administrative Agent.
SECTION 8.2.4 FINANCIAL CONDITION. The Revolving Borrower will not
permit:
(a) Consolidated Net Worth at any time to be less than the sum of (i)
$250,000,000 PLUS (ii) 50% of the cumulative amount of Consolidated Net
Income for each Fiscal Quarter (which, if less than zero for any Fiscal
Quarter, shall be deemed to be an amount equal to zero for such quarter)
ending at March 31, 1997 and thereafter;
(b) the Consolidated Interest Coverage Ratio for any period of four
consecutive Fiscal Quarters to be less than 2.50:1 calculated as of the
last day of such period; and
(c) the Consolidated Funded Debt to Cash Flow Ratio at the end of any
Fiscal Quarter to be greater than 3.25:1.
SECTION 8.2.5 APPROVED ACQUISITIONS AND OTHER INVESTMENTS. Each Borrower
will not, and will not permit any of its Subsidiaries to make any Acquisition,
or to make, incur, assume or suffer to exist any Investment in any other Person,
except:
(a) Approved Acquisitions; PROVIDED, that the Revolving Borrower has
complied with the provisions of this SECTION 8.2.5 with respect to such
Approved Acquisitions;
(b) Investments existing on the Restatement Effective Date and
identified in ITEM 8.2.5(b) ("Ongoing Investments") of the Disclosure
Schedule;
(c) Cash Equivalent Investments and other Investments made in
accordance with the Revolving Borrower's Cash Management Policy as in
effect on the date hereof, a copy of which is attached hereto as EXHIBIT K,
as such policy may be amended from time to time; PROVIDED that any such
amendments have been furnished to the Lenders (through the Administrative
Agent) and the Majority Lenders have not objected thereto within fifteen
days of receipt thereof;
(d) without duplication, Investments permitted as Indebtedness
pursuant to SECTION 8.2.2;
(e) without duplication, Capital Expenditures (other than Capital
Expenditures constituting an Acquisition) of each Borrower or any of its
Subsidiaries;
(f) in the ordinary course of business, Investments by each Borrower
in any of its wholly-owned Subsidiaries, or by
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any such Subsidiary in any of its wholly-owned Subsidiaries, by way of
contributions to capital or loans or advances;
(g) other Investments in an aggregate amount at any one time not to
exceed $10,000,000 (or the Dollar Equivalent thereof);
(h) [INTENTIONALLY OMITTED]
(i) [INTENTIONALLY OMITTED]
PROVIDED, HOWEVER, that
(A) any Investment which when made complies with the requirements of
the definition of the term "CASH EQUIVALENT INVESTMENT" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
(B) no Investment otherwise permitted by CLAUSE (a), (f) or (g) shall
be permitted to be made if, immediately before or after giving effect
thereto, any Default shall have occurred and be continuing.
In the event that the Revolving Borrower wishes to make any Acquisitions,
the Revolving Borrower will deliver to the Administrative Agent a written notice
thereof, containing a description in detail reasonably satisfactory to the
Administrative Agent of the businesses, Persons and assets proposed to be
acquired and the terms and conditions of such proposed Acquisition. Such notice
must also include a summary calculation of Acquired Net Operating Cash Flow
prepared with respect to such Acquisition for each of the four consecutive
Fiscal Quarters ending on the last day of the immediately preceding Fiscal
Quarter, and must be delivered:
(i) in the case of an Acquisition which will be financed with a
Credit Extension in excess of $50,000,000, not less than 21 days prior to
the desired closing date of such Acquisition; and
(ii) in the case of any other Acquisition, not less than 30 days after
the closing date of such Acquisition.
In the case of any Approved Acquisition to be financed with Credit Extensions in
excess of $50,000,000, such notice shall also provide in detail satisfactory to
the Administrative Agent information relating to any Lien (other than a Lien
permitted by SECTION 8.2.3) that will not be released in connection with such
Approved Acquisition. The Revolving Borrower shall also deliver to the
Administrative Agent such financial statements and appraisals for the Persons,
businesses or other assets which the
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Revolving Borrower proposes to acquire as may be reasonably requested by the
Administrative Agent. Such notice shall be accompanied by (A) PRO FORMA
financial statements of the Revolving Borrower prepared by the Revolving
Borrower demonstrating to the reasonable satisfaction of the Majority Lenders
that such Acquisition will comply with the requirements of CLAUSE (iii) of
the definition of Approved Acquisition, and (B) a certificate of a senior
financial Authorized Officer of the Revolving Borrower certifying that
(subject to any necessary approvals of the Lenders) such Acquisition will be
an Approved Acquisition.
The Administrative Agent will promptly deliver copies of all materials
which it receives from the Revolving Borrower pursuant to this SECTION 8.2.5 to
the Lenders.
SECTION 8.2.6 RESTRICTED PAYMENTS, ETC. On and at all times after the
Restatement Effective Date:
(a) the Revolving Borrower will not declare, pay or make any dividend
or distribution (in cash, property or obligations) on any shares of any
class of capital stock (now or hereafter outstanding) of the Revolving
Borrower or on any warrants, options or other rights with respect to any
shares of any class of capital stock (now or hereafter outstanding) of the
Revolving Borrower (other than dividends or distributions payable in its
common stock or warrants to purchase its common stock or splitups or
reclassifications of its stock into additional or other shares of its
common stock) or apply, or permit any of its Subsidiaries to apply, any of
its funds, property or assets to the purchase, redemption, sinking fund or
other retirement of, or agree or permit any of its Subsidiaries to purchase
or redeem, any shares of any class of capital stock (now or hereafter
outstanding) of the Revolving Borrower, or warrants, options or other
rights with respect to any shares of any class of capital stock (now or
hereafter outstanding) of the Revolving Borrower (collectively,
"DISTRIBUTIONS"); and
(b) the Revolving Borrower will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing purposes;
PROVIDED, that following the Restatement Effective Date, the Revolving Borrower
may make Distributions in cash if all the following conditions are met:
(A) no Default shall have occurred and be continuing both prior to and
after giving effect to the declaration and payment of any such Distribution;
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(B) the aggregate cumulative amount of Distributions made after the
Restatement Effective Date shall not exceed 50% of the cumulative amount of
Consolidated Net Income for the period after September 30, 1995; and
(C) no Distribution may be made with any of the proceeds of any Credit
Extension.
SECTION 8.2.7 CONSOLIDATION, MERGER, ETC. The Revolving Borrower will
not, and will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except (provided no Event of Default shall arise
therefrom)
(a) any Approved Acquisition which does not result in the
liquidation, dissolution, merger or consolidation of the Revolving
Borrower, and
(b) (i) any such Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, the Revolving Borrower or any other
Subsidiary; PROVIDED that, in the case of any such merger including the
Revolving Borrower or the Term Borrower, such Borrower is the surviving
corporation, and (ii) the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Revolving Borrower or any other
Subsidiary.
SECTION 8.2.8 ASSET DISPOSITIONS, ETC. Each Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
all or any substantial part of its assets (including accounts receivable and
capital stock of Subsidiaries) to any Person, other than
(a) sales of inventory in the ordinary course of such Borrower's or
its Subsidiaries' business;
(b) sales for fair market value of equipment, which is surplus,
worn-out or obsolete and no longer useful in such Borrower's operations;
(c) sales of assets in any Fiscal Year, the net book value of which,
together with the net book value of all other assets sold, transferred,
leased, contributed or conveyed otherwise than in the ordinary course of
business by such Borrower or any of its Subsidiaries pursuant to this
clause during such Fiscal Year does not exceed $10,000,000 (or the Dollar
Equivalent thereof);
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(d) sales of properties described in ITEM 8.2.8(d) ("Properties Held
for Sale") of the Disclosure Schedule; and
(e) [INTENTIONALLY OMITTED]
SECTION 8.2.9 MODIFICATION OF CERTAIN AGREEMENTS. The Revolving Borrower
will not consent to any amendment, supplement, waiver or other modification of
any of the terms or provisions contained in, or applicable to, any of the
Settlement Agreements (each a "SETTLEMENT AGREEMENT MODIFICATION") if such
Settlement Agreement Modification would, or could reasonably be expected to:
(a) increase or accelerate the payment date of any amounts payable by
the Revolving Borrower or any of its Subsidiaries under the Settlement
Agreements, or require the Revolving Borrower or any of its Subsidiaries to
pay any material amounts which would not otherwise have been payable by
them under the Settlement Agreements;
(b) reduce or delay in any material respect the payment or funding of
any amounts which the parties to the Settlement Agreements (other than the
Revolving Borrower and its Subsidiaries) are obligated to pay to or on
behalf of the Revolving Borrower or any of its Subsidiaries (including
without limitation (i) the payment of any claims, judgments, settlements or
other amounts payable in respect of asbestos or Asbestos Litigation, and
(ii) the funding of any trusts, escrows or other funding mechanisms
provided for in the Settlement Agreements);
(c) change in any material respect the "spendthrift" limitations
applicable to any payments which are to be made from any trusts, escrows or
other funds which are established or to be established pursuant to the
Settlement Agreements;
(d) modify in any way which is materially adverse to the Revolving
Borrower or any of its Subsidiaries any of the components contained in the
definition of Global Approval Judgment or Insurance Settlement Agreement
Approval Judgment as in effect on the Original Effective Date; or
(e) otherwise have a Material Adverse Effect.
To the extent reasonably practicable prior to entering into any Settlement
Agreement Modification or other modification of any of the terms, or provisions
contained in or applicable to any of the Settlement Agreements, the Revolving
Borrower will deliver to the Administrative Agent a copy thereof and, if the
Revolving Borrower believes that such Settlement Agreement Modification does not
violate this SECTION 8.2.9, a written explanation of the reason for such belief.
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SECTION 8.2.10 TRANSACTIONS WITH AFFILIATES. Each Borrower will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to such Borrower or
such Subsidiary and is an arrangement or contract of the kind which would be
entered into by a prudent Person in the position of such Borrower or such
Subsidiary with a Person which is not one of its Affiliates.
SECTION 8.2.11 NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. Each
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding this Agreement and any other Loan Document):
(a) (other than in connection with a Qualified Working Capital
Facility) prohibiting or restricting the creation or assumption of any Lien
on any asset that would have been subject to any Lien under the Collateral
Documents if the Restatement Effective Date had not occurred;
(b) restricting the ability of such Borrower or any other Obligor to
amend or otherwise modify this Agreement or any other Loan Document; or
(c) except as otherwise approved in writing by the Majority Lenders,
prohibiting or restricting the ability of any Subsidiary of either Borrower
to make any payments, directly or indirectly, to such Borrower by way of
dividends, advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or other
returns on investments, or any other agreement or arrangement which
restricts the ability of any such Subsidiary to make any payment, directly
or indirectly, to such Borrower.
SECTION 8.2.12 FISCAL YEAR OF BORROWERS. Each Borrower will not, and will
not permit any of its Significant Subsidiaries to, change its Fiscal Year from
that in effect on the Restatement Effective Date, except to change the Fiscal
Year of a Significant Subsidiary acquired in an Approved Acquisition to conform
its Fiscal Year to the Revolving Borrower's.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 LISTING OF EVENTS OF DEFAULT. Each of the following events or
occurrences described in this SECTION 9.1 shall constitute an "EVENT OF
DEFAULT".
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SECTION 9.1.1 NON-PAYMENT OF OBLIGATIONS. Either Borrower shall default
in the payment or prepayment when due of any principal of any Loan or of any
Reimbursement Obligation (and such default shall continue for one Business Day),
or either Borrower shall default in the payment when due of interest on any Loan
or any Commitment Fee or Letter of Credit fee (and such default shall continue
for three Business Days) or either Borrower shall default in the payment when
due of any other Obligation (and such default shall continue for five Business
Days).
SECTION 9.1.2 BREACH OF WARRANTY. Any representation or warranty of
either Borrower or any other Obligor made or deemed to be made hereunder or in
any other Loan Document or any other writing or certificate furnished by or on
behalf of either Borrower or any other Obligor to either Co-Agent or any Lender
for the purposes of or in connection with this Agreement or any such other Loan
Document (including any certificates delivered pursuant to ARTICLE VI) is or
shall be incorrect when made in any material respect.
SECTION 9.1.3 NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.
Either Borrower shall default in the due performance and observance of any of
its obligations under SECTION 8.2.3 (and such default shall continue for 30 days
after the occurrence thereof) or SECTION 8.2.4, 8.2.5, 8.2.6, 8.2.7, 8.2.9,
8.2.10 or 8.2.12.
SECTION 9.1.4 NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document, and such default shall
continue unremedied for a period of 30 days after notice thereof shall have been
given to the Revolving Borrower by the Administrative Agent or any Lender.
SECTION 9.1.5 DEFAULT ON OTHER INDEBTEDNESS OR SETTLEMENT OBLIGATIONS.
A default shall occur in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any Indebtedness (other
than Indebtedness described in SECTION 9.1.1) of either Borrower or any of its
Subsidiaries having a principal amount, individually or in the aggregate, in
excess of $1,000,000 (or the Dollar Equivalent thereof) (or, in the case of
Hedging Obligations, a notional principal amount of $10,000,000 or the Dollar
Equivalent thereof), or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness (i) if the
effect of such default is to accelerate the maturity of any such Indebtedness or
(ii) such default shall continue unremedied for any applicable period of time
sufficient to permit the holder or holders of such Indebtedness, or any trustee
or agent for such holders, to cause such Indebtedness to
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become due and payable prior to its expressed maturity and, in the case of
CLAUSE (ii), such default shall continue unremedied for a period of 30 days
after the earlier of notice having been given to the Revolving Borrower by
the Administrative Agent or any Lender or after an Authorized Officer becomes
aware thereof.
SECTION 9.1.6 JUDGMENTS. Any judgment or order for the payment of money
in excess of $10,000,000 (or the Dollar Equivalent thereof) in the aggregate
shall be rendered against either Borrower or any of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order;
(b) (except for judgments and orders in respect of Asbestos
Litigation) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal, contract or otherwise, shall not be in effect; and
(c) in the case of any Asbestos Litigation, there shall be any period
of 90 consecutive days during which such judgment remains unsatisfied or
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal, contract or otherwise, shall not be in effect.
SECTION 9.1.7 PENSION PLANS. Any of the following events shall occur with
respect to any Pension Plan
(a) the institution of any steps by either Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan (other
than a voluntary termination of a Pension Plan in existence, and in respect
of which such Borrower was a member of a Controlled Group, on the Original
Effective Date) if, as a result of such termination, such Borrower or any
such member could be required to make a contribution to such Pension Plan,
or could reasonably expect to incur a liability or obligation to such
Pension Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 9.1.8 CONTROL OF THE BORROWER. Any Change of Control of either
Borrower shall occur.
SECTION 9.1.9 BANKRUPTCY, INSOLVENCY, ETC. Either Borrower or any of its
Subsidiaries shall
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(a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for either Borrower or
any of its Subsidiaries or any property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for either Borrower or any of its
Subsidiaries or for a substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, PROVIDED that each Borrower, hereby expressly
authorizes the Administrative Agent and each Lender to appear in any court
conducting any relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of either Borrower or any of its Subsidiaries, and,
if any such case or proceeding is not commenced by either Borrower or such
Subsidiary, such case or proceeding shall be consented to or acquiesced in
by either Borrower or such Subsidiary or shall result in the entry of an
order for relief or shall remain for 60 days undismissed, PROVIDED that
each Borrower hereby expressly authorizes the Administrative Agent and each
Lender to appear in any court conducting any such case or proceeding during
such 60-day period to preserve, protect and defend their rights under the
Loan Documents; or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
SECTION 9.1.10 IMPAIRMENT OF LOAN DOCUMENTS, ETC. Any Loan Document shall
(except in accordance with its terms), in whole or in part, terminate, cease to
be effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto; or either Borrower, any other Obligor
or any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability.
SECTION 9.1.11 ASBESTOS LITIGATION PAYMENTS. The Revolving Borrower or
any of its Subsidiaries shall be required to pay from its own funds (other than
(i) from existing reserves or (ii)
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funds from available insurance) any judgment or settlement with respect to
asbestos or Asbestos Litigation in an aggregate amount after the Restatement
Effective Date in excess of $10,000,000.
SECTION 9.1.12 ASBESTOS QUALIFICATION. The Revolving Borrower shall
receive any notice or other information from Arthur Andersen & Co. or any other
independent public accounting firm retained by the Revolving Borrower to audit
its financial statements that a substantial likelihood exists that the next
annual audit report issued by such firm will contain an Asbestos Qualification;
PROVIDED that no Event of Default shall occur under this SECTION 9.1.12 if
within 60 days after receipt of such notice or other information the Revolving
Borrower executes and delivers to the Administrative Agent the Collateral
Documents substantially in the form in effect at the time immediately preceding
the Restatement Effective Date, in each case, together with the items set forth
in Sections 6.1.5 and 6.1.6 of the Original Credit Agreement, as applicable.
SECTION 9.2 ACTION IF BANKRUPTCY. If any Event of Default described in
CLAUSES (a) through (d) of SECTION 9.1.9 shall occur, the Commitments to make
Loans and issue Letters of Credit (but not the Lender's Commitments to
participate in outstanding Letters of Credit) and the Swingline Commitment to
make Swingline Loans, if not theretofore terminated, shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 9.3 ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in CLAUSES (a) through (d) of SECTION
9.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Majority
Lenders, shall by notice to either or both Borrowers declare all or any portion
of the outstanding principal amount of the Loans and other Obligations of such
Borrower to be due and payable and/or the Commitments to make Loans and issue
Letters of Credit (but not the Commitments to participate in outstanding Letters
of Credit) and the Swingline Commitment to make Swingline Loans, if not
theretofore terminated, to be terminated, whereupon the full unpaid amount of
all Loans and other Obligations which shall be so declared due and payable shall
be and become immediately due and payable, without further notice, demand or
presentment, and/or, as the case may be, the Commitments shall terminate.
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ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.1 APPOINTMENT AND AUTHORIZATION. Each of the Lenders hereby
irrevocably appoints, designates and authorizes the Administrative Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall have no
duties or responsibilities, except those expressly set forth herein, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
SECTION 10.2 DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
SECTION 10.3 LIABILITY OF ADMINISTRATIVE AGENT AND ISSUERS. None of the
Administrative Agent/Related Persons shall (i) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by either Borrower or any
Subsidiary of such Borrower, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or for
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of either Borrower or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent/Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
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records of either Borrower or any of its Subsidiaries or Affiliates.
SECTION 10.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to either
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Lenders or Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Majority Lenders or Lenders, as applicable, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in ARTICLE VI, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter either sent or made available by the Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from such Lender prior to the applicable Credit Extension
specifying its objection thereto and either such objection shall not have been
withdrawn by notice to the Administrative Agent to that effect or (with respect
to any Loan) such Lender shall not have made available to the Administrative
Agent such Lender's ratable portion of any Borrowing.
SECTION 10.5 NOTICE OF DEFAULT. The Administrative Agent shall be deemed
to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a
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Lender or either Borrower referring to this Agreement, describing such
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative
Agent will give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be requested by the Majority Lenders in accordance with ARTICLE IX;
PROVIDED, HOWEVER, that unless and until the Administrative Agent shall have
received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, subject
to the provisions of SECTION 9.3, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
SECTION 10.6 CREDIT DECISION. Each Lender expressly acknowledges that
none of the Administrative Agent/Related Persons has made any representation or
warranty to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of either Borrower and its Subsidiaries,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative 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 each Borrower and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated thereby, and made its
own decision to enter into this Agreement and extend credit to each Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, evaluations and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of each Borrower.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of either Borrower which may
come into the possession of any of the Administrative Agent/Related Persons.
SECTION 10.7 INDEMNIFICATION. The Lenders shall indemnify upon demand the
Administrative Agent/Related Persons and the Documentation Agent/Related Persons
(to the extent not reimbursed by or on behalf of either Borrower and without
limiting the obligation of each Borrower to do so), ratably according to its
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respective Percentage 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 termination of the Letters of Credit, the repayment of the
Loans and the termination or resignation of the Administrative Agent or the
Documentation Agent, as applicable) be imposed on, incurred by or asserted
against any such Person in 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 Lender shall be liable for the payment to the Administrative
Agent/Related Persons or Documentation 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 Lender shall reimburse the Administrative Agent and the Documentation Agent
upon demand for its ratable share according to its respective Percentage of any
reasonable costs or out-of-pocket expenses including the fees and disbursements
of legal counsel incurred by the Administrative Agent or the Documentation Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein to the extent that the Administrative
Agent or the Documentation Agent is not reimbursed for such expenses by or on
behalf of either Borrower. Without limiting the generality of the foregoing, if
the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify Administrative Agent fully
for all amounts paid, directly or indirectly, by the Administrative Agent as tax
or otherwise, including penalties and interest, and including any taxes imposed
by any jurisdiction on the amounts payable to Administrative Agent under this
SECTION 10.7, together with all costs and out-of-pocket expenses, including the
fees and disbursements of legal counsel. The obligation of the Lenders in this
Section shall survive the payment of all Obligations hereunder.
SECTION 10.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to,
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issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each Borrower and its
Subsidiaries and Affiliates as though it were not the Administrative Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, the Administrative Agent or
its Affiliates may receive information regarding either Borrower or its
Subsidiaries or Affiliates (including information that may be subject to
confidentiality obligations in favor of such Borrower or such Subsidiary or
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans
and participation in Letters of Credit, the Administrative Agent shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
SECTION 10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign from its capacity as Administrative Agent upon 30 days' notice to the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, the Majority Lenders shall appoint from among the Lenders a
successor agent for the Lenders. If no successor Administrative Agent is
appointed prior to the effective date of the resignation of a retiring
Administrative Agent, the Administrative Agent shall appoint, after consulting
with the Lenders and the Revolving Borrower, a successor agent from among the
Lenders. 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 Administrative Agent and the term "Administrative Agent" shall mean
such successor agent and the retiring Administrative Agent's rights, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this ARTICLE X and SECTIONS 11.3 and 11.4 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Majority Lenders appoint a successor
agent as provided for above.
SECTION 10.10 COLLATERAL MATTERS.
(a) The Revolving Borrower hereby requests the Administrative Agent,
the Documentation Agent and the Lenders to
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release the Collateral Documents and Collateral. To induce the
Administrative Agent, the Documentation Agent and the Lenders to consent to
such release, the Revolving Borrower hereby certifies to each of them that:
(i) no Default has occurred and is continuing on the Restatement
Effective Date or shall have occurred and be continuing on the date of the
release of the Collateral, both before and after giving effect to such
release;
(ii) the representations and warranties of each Borrower set
forth in ARTICLE VII are true and correct on the Restatement Effective Date
and shall be true and correct on the date of the release of the Collateral,
both before and after giving effect to such release;
(iii) a Settlement Agreement Approval Judgment has been issued
and entered as to which any appeal (and subsequent remand, if any) has been
finally decided and no further appeal or petition for certiorari can be
taken or granted; and
(iv) Arthur Andersen LLP has delivered its opinion with respect
to the December 31, 1995 audited annual consolidated financial statements
of the Revolving Borrower and its Subsidiaries and such opinion contains no
Impermissible Qualification (including, without limitation, the Asbestos
Qualification).
(b) The Documentation Agent and the Lenders hereby irrevocably
consent to the release of the Collateral Documents and the Collateral, and
authorize the Administrative Agent to release the Collateral Documents and any
Lien granted to or held by the Administrative Agent upon any Collateral.
(c) The Administrative Agent is hereby instructed by the Lenders to
sign all applicable agreements and other documents respecting the Collateral
release permitted hereunder.
SECTION 10.11 FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender or
Bid Loan Lender by 3:00 p.m., San Francisco time, on the day prior to a
Borrowing that such Lender will not make available the amount which would
constitute its Percentage of such Borrowing on the date specified therefor, or
such Bid Loan Lender shall not make available the amount of its Bid Loan on the
date specified therefor the Administrative Agent may assume that such Lender or
Bid Loan Lender, as the case may be, has made such amount available to the
Administrative Agent and, in reliance upon such assumption, may (but shall not
be obligated to) make available to the applicable Borrower a corresponding
amount. If and to the extent that such
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Lender shall not have made such amount available to the Administrative Agent,
such Lender or Bid Loan Lender, as the case may be, and the applicable
Borrower severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to such
Borrower to the date such amount is repaid to the Administrative Agent, at
the interest rate applicable at the time to Loans comprising such Borrowing.
SECTION 10.12 COPIES, ETC. The Administrative Agent will give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by each Borrower pursuant to the terms of this
Agreement or the other Loan Documents (unless concurrently delivered to the
Lenders by such Borrower). The Administrative Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by it from each Borrower for distribution to the
Lenders in accordance with the terms of this Agreement or the other Loan
Documents.
SECTION 10.13 CO-AGENTS. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "co-agent" (other than BofA in
its capacity as Administrative Agent) or "documentation co-agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as a "co-agent" (including BofA in
its capacity as Administrative Agent) or "documentation co-agent" shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
Section 10.14. LIMITATIONS ON INTEREST. It is the intention of the parties
hereto to conform strictly to applicable usury laws and, anything herein to the
contrary notwithstanding, the obligations of the Borrowers to each Lender or
Co-Agent under this Agreement, the Notes, the Loan Documents and any other
document or instrument executed in connection herewith or therewith, shall be
subject to the limitation that payments of interest or of other amounts
constituting interest under applicable law to such Lender or Co-Agent shall not
be required to the extent that receipt thereof would be in excess of the Highest
Lawful Rate (as defined below), or otherwise contrary to provisions of law
applicable to such Lender or Co-Agent limiting rates of interest which may be
charged or collected by Lender or Co-Agent. Accordingly, if the transactions or
the amount paid or otherwise agreed to be paid for the use, forbearance or
detention of money under this Agreement, the Notes, the Loan Documents and
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any other document or instrument executed in connection herewith or therewith
would exceed the Highest Lawful Rate or otherwise be usurious under
applicable law (including the federal and state laws of the United States of
America, or of any other jurisdiction whose laws may be mandatorily
applicable) with respect to any Lender or Co-Agent then, in that event,
notwithstanding anything to the contrary in this Agreement or the Loan
Documents and any other document or instrument executed in connection
herewith or therewith, it is agreed as follows as to each Lender and Co-Agent:
(a) the provisions of this SECTION 10.14 shall govern and
control over any other provision in this Agreement, the Notes,
the Loan Documents and any other document or instrument executed
in connection herewith or therewith and each provision set forth
therein is hereby so limited;
(b) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, charged or
received under this Agreement, or under any of the other
aforesaid agreements or otherwise in connection with this
Agreement by such Lender or Co-Agent shall under no circumstances
exceed the maximum amount of interest allowed by applicable law
(such maximum lawful interest rate, if any, with respect to such
Lender herein called the "HIGHEST LAWFUL RATE"), and all amounts
owed under this Agreement, the Notes, the Loan Documents and any
other document or instrument executed in connection herewith or
therewith shall be held subject to reduction and (i) the amount
of interest which would otherwise be payable to such Lender or
Co-Agent hereunder and under the Loan Documents and any other
document or instrument executed in connection herewith or
therewith, shall be automatically reduced to the amount allowed
under applicable law and (ii) any unearned interest paid by a
Borrower in excess of the Highest Lawful Rate shall be credited
to the applicable Borrower by such Lender or Co-Agent (or, if
such consideration shall have been paid in full, refunded to the
applicable Borrower);
(c) all sums paid, or agreed to be paid, to such Lender for
the use, forbearance and detention of the indebtedness of a
Borrower to such Lender or Co-Agent hereunder shall, to the
extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such
indebtedness until payment in full so
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that the actual rate of interest is uniform throughout the full
term thereof;
(d) if at any time the interest provided pursuant to this
Agreement, together with any other fees, late charges and other
sums payable pursuant to or in connection with this Agreement or
any other Loan Document and deemed interest under applicable law,
exceeds that amount which would have accrued at the Highest
Lawful Rate, the amount of interest and any such fees, charges
and sums to accrue to such Lender or Co-Agent pursuant to this
Agreement or any other Loan Document shall be limited,
notwithstanding anything to the contrary in this Agreement or any
other Loan Document to that amount which would have accrued at
the Highest Lawful Rate for such Lender or Co-Agent, as the case
may be, but any subsequent reductions, as applicable, shall not
reduce the interest to accrue pursuant to this Agreement below
the Highest Lawful Rate for such Lender or Co-Agent until the
total amount of interest payable to such Lender or Co-Agent
(including all consideration which constitutes interest) equals
the amount of interest which would have been payable to such
Lender or Co-Agent (including all consideration which constitutes
interest) assuming a varying rate per annum equal to the interest
provided pursuant to SECTION 3.2 at all times in effect, PLUS the
amount of fees which would have been received but for the effect
of this SECTION 10.14.
For purposes of Article 5069-1.04, Vernon's Texas Civil Statutes, as
amended, to the extent, if any, applicable to any Lender or Co-Agent,
each Borrower agrees that the Highest Lawful Rate for any Lender or
Co-Agent shall be the "indicated (weekly) rate ceiling" as defined in
said Article, provided that such Lender or Co-Agent may also rely, to
the extent permitted by applicable laws, on alternative maximum rates
of interest under other laws applicable to such Lender or Co-Agent if
greater. To the extent that Texas law shall be applicable to the
determination of the Highest Lawful Rate of any Lender or Co-Agent,
the provisions of Chapter 15 of Subtitle 3, Title 79 of the Revised
Civil Statutes of Texas, 1925, as amended, shall not apply to this
Agreement, the Notes or any other Loan Document.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by each Borrower and the Majority Lenders; PROVIDED, HOWEVER, that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Majority Lenders shall be effective
unless consented to by each Lender;
(b) modify this SECTION 11.1 or SECTION 10.10(c), change the
definition of "MAJORITY LENDERS", increase any Revolving Commitment Amount
or Term Commitment Amount or the Percentage of any Lender, reduce any fees
described in ARTICLE III or extend any Commitment Termination Date shall be
made without the consent of each Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on any Loan (or reduce
the principal amount of or rate of interest on any Loan) shall be made
without the consent of the Lender holding such Loan;
(d) affect adversely the interests, rights or obligations of any
Issuer QUA the Issuer shall be made without the consent of such Issuer;
(e) affect adversely the interests, rights or obligations of the
Administrative Agent QUA the Administrative Agent shall be made without
consent of the Administrative Agent; and
(f) affect adversely the interests, rights or obligations of the
Documentation Agent QUA the Documentation Agent shall be made without the
consent of the Documentation Agent.
No failure or delay on the part of the Administrative Agent, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on either Borrower in any case shall entitle it to any notice or demand
in similar or other circumstances. No
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waiver or approval by the Administrative Agent, any Lender or the holder of
any Note under this Agreement or any other Loan Document shall, except as may
be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder. EACH
LENDER AGREES WITH AND IN FAVOR OF EACH OTHER LENDER (WHICH AGREEMENT SHALL
NOT BE FOR THE BENEFIT OF EITHER BORROWER OR ANY OF ITS SUBSIDIARIES) THAT NO
OBLIGOR'S OBLIGATIONS TO SUCH LENDER UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS ARE OR WILL BE SECURED BY ANY REAL PROPERTY COLLATERAL NOW OR
HEREAFTER ACQUIRED BY SUCH LENDER.
SECTION 11.2 NOTICES. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted and receipt thereof has been electronically confirmed.
SECTION 11.3 PAYMENT OF COSTS AND EXPENSES. The Revolving Borrower agrees
to pay on demand all reasonable expenses of the Administrative Agent (including
the fees, charges and out-of-pocket expenses of counsel (including allocated
costs of internal counsel) to the Administrative Agent and of local counsel, if
any, who may be retained by counsel to the Administrative Agent) in connection
with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from time
to time hereafter be required, whether or not the transactions contemplated
hereby are consummated;
(b) the filing and recording, refiling or rerecording of all releases
in respect of the Collateral Documents and the Collateral; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
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The Revolving Borrower further agrees to pay, and to save the Administrative
Agent and the Lenders harmless from all liability for, any stamp or other taxes
which may be payable in connection with the execution or delivery of this
Agreement, the Borrowings hereunder, the issuance of the Notes, the issuance of
the Letters of Credit, or any other Loan Documents. The Revolving Borrower also
agrees to reimburse the Administrative Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and charges and
legal expenses, including allocated costs of internal counsel)) incurred by the
Administrative Agent or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Loan
Documents or Obligations and (y) the enforcement of any Loan Documents or
Obligations.
SECTION 11.4 INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by the Administrative Agent and the Documentation
Agent and each Lender and the extension of the Commitments, the Revolving
Borrower hereby agrees to indemnify, exonerate and hold the Administrative
Agent, the Documentation Agent and the Issuer and each Lender and each of their
respective officers, directors, employees and agents (collectively, the
"INDEMNIFIED PARTIES") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees, charges and disbursements (including
allocated costs of internal counsel) (collectively, the "INDEMNIFIED
LIABILITIES"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan or the use of any
Letter of Credit;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties (including any action
brought by or on behalf of either Borrower as the result of any
determination by the Majority Lenders pursuant to ARTICLE VI not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by either Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not the Administrative Agent or such Lender is party thereto;
(d) any pending or threatened investigation, litigation or proceeding,
or any action taken by any Person,
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with respect to any Environmental Claim arising out of or related to the
Release by either Borrower or any of its Subsidiaries of any Hazardous
Material on any property owned, leased, occupied or used by such
Borrower or its Subsidiaries subject to any Collateral Document;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by either Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control
of, such Borrower or such Subsidiary; or
(f) any Asbestos Litigation,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. No action taken by legal counsel chosen by the
Administrative Agent the Documentation Agent or any Lender in defending against
any such investigation, litigation or proceeding or requested remedial, removal
or response action shall vitiate or in any way impair the Revolving Borrower's
obligation and duty hereunder to indemnify and hold harmless the Administrative
Agent, the Documentation Agent and each Lender. In no event shall any site
visit, observation, or testing by the Administrative Agent, the Documentation
Agent or any Lender be deemed a representation or warranty that Hazardous
Materials are or are not present in, on, or under the site, or that there has
been or shall be compliance with any Environmental Law. Neither Borrower nor
any other Person is entitled to rely on any site visit, observation, or testing
by either Co-Agent or any Lender. Neither the Administrative Agent nor any
Lender owes any duty of care to protect either Borrower or any other Person
against, or to inform either Borrower or any other party of, any Hazardous
Materials or any other adverse condition affecting any site or Property.
Neither the Administrative Agent, the Documentation Agent nor any Lender shall
be obligated to disclose to either Borrower or any other Person any report or
findings made as a result of, or in connection with, any site visit,
observation, or testing by either Co-Agent or any Lender. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, the
Revolving Borrower hereby agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
SECTION 11.5 SURVIVAL. The obligations of each Borrower under SECTIONS
5.3, 5.4, 5.5, 5.6, 5.11, 11.3 and 11.4, and the obligations of the Lenders
under SECTION 10.1, shall in each case
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survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by each Obligor in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
SECTION 11.6 SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 11.7 HEADINGS. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 11.8 EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be executed by each Borrower, the Administrative Agent and the
Documentation Agent and be deemed to be an original and all of which shall
constitute together but one and the same agreement.
SECTION 11.9 GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, PROVIDED THAT THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW. This Agreement, the Notes and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to the subject
matter hereof, supersede any prior agreements, written or oral, with respect
thereto and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties.
SECTION 11.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that:
(a) no Borrower may assign or transfer its rights or obligations
hereunder without the prior written consent of the Administrative Agent and
all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to SECTION 11.11.
-111-
<PAGE>
SECTION 11.11 SALE AND TRANSFER OF LOANS AND NOTES; PARTICIPATIONS IN
LOANS AND NOTES. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons in accordance with this SECTION
11.11.
SECTION 11.11.1 ASSIGNMENTS. Any Lender,
(a) with the written consents of each Borrower (except that no consent
of either Borrower shall be required after the occurrence and during the
continuance of a Default), the Administrative Agent, and any Issuer (which
consents shall not be unreasonably delayed or withheld and which consent,
in the case of each Borrower, shall be deemed to have been given in the
absence of a written notice delivered by each Borrower to the
Administrative Agent, on or before the fifth Business Day after receipt by
such Borrower of such Lender's request for consent, stating, in reasonable
detail, the reasons why such Borrower proposes to withhold such consent)
may at any time assign and delegate to one or more commercial banks or
other financial institutions, and
(b) with notice to either Borrower and the Administrative Agent, but
without the consent of either Borrower or the Administrative Agent, may
assign and delegate to any of its Affiliates or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), (x) all or any fraction of such Lender's total Loans
and Commitments, or (y) in the case of the Swingline Lender, all of its
Swingline Loans and Swingline Commitment (which assignment and delegation shall
be of a constant, and not a varying, percentage of all the assigning Lender's
Loans (other than Bid Loans) and Commitments and, in connection with any
assignment by BofA, its Swingline Commitment and Swingline Loans may be in whole
but not in part included as part of the assignment transaction) in a minimum
aggregate amount of $10,000,000; PROVIDED, HOWEVER, that any such Assignee
Lender will comply, if applicable, with the provisions contained in SECTION 5.12
and in the last sentence of SECTION 5.6 and FURTHER, PROVIDED, HOWEVER, that,
each Borrower, each other Obligor and the Administrative Agent shall be entitled
to continue to deal solely and directly with such Lender in connection with the
interests so assigned and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to each Borrower, the
Administrative Agent and any Issuer by such Lender and such Assignee
Lender,
-112-
<PAGE>
(d) such Assignee Lender shall have executed and delivered to each
Borrower, the Administrative Agent and any Issuer a Lender Assignment
Agreement, accepted by the Administrative Agent, and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. If requested as provided in SECTION 2.9, within five Business
Days after its receipt of notice that the Administrative Agent has received an
executed Lender Assignment Agreement, each Borrower shall execute and deliver to
the Administrative Agent (for delivery to the relevant Assignee Lender) new
Notes evidencing such Assignee Lender's assigned Loans and Commitment or
Swingline Commitment, as the case may be, and, if the assignor Lender has
retained Loans and a portion of its Commitment hereunder, replacement Notes in
the principal amounts of the Loans and Commitment retained by the assignor
Lender hereunder (such Notes to be in exchange for, but not in payment of, the
Notes then held by such assignor Lender). Each such Note shall be dated the
date of the predecessor Note. Following receipt of the replacement Notes and
new Notes by the Assigning Lender and the Assignee Lenders, the assignor Lender
shall mark the predecessor Notes "exchanged" and deliver them to the applicable
Borrowers. Accrued interest on that part of the predecessor Notes evidenced by
the Notes, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Notes evidenced by
replacement Notes shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Notes and in this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee to the Administrative Agent upon delivery of any
Lender Assignment Agreement in the amount of $3,500.
SECTION 11.11.2 PARTICIPATIONS. Any Lender may at any time sell to one or
more commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "PARTICIPANT") participating interests (or a
sub-participating interest, in the case of a Lender's participating interest in
a Letter of Credit) in any of the Loans (including its Bid Loans),
-113-
<PAGE>
Commitment, or other interests of such Lender hereunder; PROVIDED, HOWEVER,
that
(a) no participation or sub-participation contemplated in this
SECTION 11.11 shall relieve such Lender from its Commitment or Swingline
Commitment, as the case may be, or its other obligations hereunder or under
any other Loan Document,
(b) such Lender shall remain solely responsible for the performance of
its Commitment and such other obligations,
(c) each Borrower and each other Obligor and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each of
the other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any actions of
the type described in CLAUSE (b) or (c) of SECTION 11.1, and
(e) neither Borrower shall be required to pay any amount under SECTION
5.6 that is greater than the amount which it would have been required to
pay had no participating interest been sold.
Each Borrower acknowledges and agrees that each Participant, for purposes of
SECTIONS 5.3, 5.4, 5.5, 5.6, 5.8, 5.9, 11.3 and 11.4, shall be considered a
Lender.
SECTION 11.12 OTHER TRANSACTIONS. Nothing contained herein shall preclude
the Administrative Agent or any other Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan Document,
with either Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13 FORUM SELECTION AND CONSENT TO JURISDICTION.
(a) ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE LENDERS OR EITHER BORROWER SHALL BE BROUGHT AND
MAINTAINED
-114-
<PAGE>
EXCLUSIVELY IN THE COURTS OF THE STATE OF CALIFORNIA OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF CALIFORNIA.
(b) EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT EITHER BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH
BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14 WAIVER OF JURY TRIAL.
THE ADMINISTRATIVE AGENT, THE LENDERS AND EACH BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE LENDERS OR EITHER BORROWER. EACH BORROWER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER LOAN DOCUMENT.
-115-
<PAGE>
SECTION 11.15 CONFIDENTIALITY.
The Administrative Agent and each Lender agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" or "secret" by either Borrower and
provided to it by such Borrower or any of its Subsidiaries, or by the
Administrative Agent on such Borrower's or Subsidiary's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Administrative Agent or any Lender, or (ii) was or
becomes available on a non-confidential basis from a source other than such
Borrower, PROVIDED that such source is not bound by a confidentiality agreement
with such Borrower known to the Administrative Agent or such Lender, as the case
may be; PROVIDED, HOWEVER, that the Administrative Agent or any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which the Administrative Agent or Lender is
subject or in connection with an examination of the Administrative Agent or
Lender 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
Law; (D) to the extent reasonably required in connection with any litigation or
proceeding to which the Administrative Agent, any Lender or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to the Administrative Agent's or such Lender's independent auditors and other
professional advisors; (G) to any Participant or Assignee Lender, actual or
potential, and to any Affiliate of the Administrative Agent or Lender provided
that such Person agrees in writing to keep such information confidential to the
same extent required of the Lenders hereunder, and (H) as to the Administrative
Agent or any Lender, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which such Borrower is party
or is deemed party with the Administrative Agent or such Lender.
SECTION 11.16 TRANSITION PROVISIONS. On the Restatement Effective Date,
the Revolving Borrower agrees to pay to the Agent for the benefit of the Lenders
(as defined in the Original Credit Agreement), all Commitment Fees, fees with
respect to Letters of Credit and other amounts which have accrued and remain
unpaid pursuant to the Original Credit Agreement as of the Restatement Effective
Date.
* * * * *
-116-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
FIBREBOARD CORPORATION
By
----------------------------------------
Title: Vice President - Finance
Address: Texas Commerce Tower
2200 Ross Avenue
Suite 3600
Dallas, Texas 75201
Facsimile No.: (214) 954-9512
Attention: Garold E. Swan
VYTEC CORPORATION
By
----------------------------------------
Title: Vice President
Address: Texas Commerce Tower
2200 Ross Avenue
Suite 3600
Dallas, Texas 75201
Facsimile No.: (214) 954-9512
Attention: Garold E. Swan
S-1
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Co-Agent
By
---------------------------------------
Title: Managing Director
Domestic
Office: 555 California Street
41st Floor
San Francisco, California 94104
Facsimile No.: (415) 622-2018
Attention: Michael Balok
S-2
<PAGE>
LENDERS
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By
-----------------------------------------
Title: Managing Director
Domestic
Office: 555 California Street
41st Floor
San Francisco, California 94104
Facsimile No.: (415) 622-2018
Attention: Michael Balok
Eurodollar
Office: 1850 Gateway Boulevard
Concord, California 94520
Facsimile No.: (510) 675-7531
Attention: Terry Peach
Account Administrator
S-3
<PAGE>
ABN AMRO BANK N.V.
SAN FRANCISCO INTERNATIONAL BRANCH
By
--------------------------------------------
Name: Dianne D. Barkley
Title: Group V.P. & Director
ABN AMRO BANK N.V.
SAN FRANCISCO INTERNATIONAL BRANCH
By
--------------------------------------------
Name: Daniel P. Taylor
Title: Assistant Vice President
Domestic
Office: 101 California Street
Suite 4550
San Francisco, California 94111
Facsimile No.: (415) 362-3524
Attention: Dianne D. Barkley
Title: Group V.P.
Eurodollar
Office: 101 California Street
Suite 4550
San Francisco, California 94111
Facsimile No.: (415) 362-3524
Attention: Gloria Lee
S-4
<PAGE>
NATIONSBANK N.A.,
as Documentation Co-Agent and Lender
By
--------------------------------------------
Title: Vice President
Domestic
Office: One NationsBank Plaza
NC1-002-06-19
Charlotte, North Carolina 28255
Facsimile No.: (704) 386-3271
Attention: Michael Tousignant
Eurodollar
Office: One NationsBank Plaza
NC1-002-06-19
Charlotte, North Carolina 28255
Facsimile No.: (704) 386-3271
Attention: Michael Tousignant
S-5
<PAGE>
WELLS FARGO BANK, NATIONAL ASSOCIATION
By
-----------------------------------------
Title: Banking Officer
Domestic
Office: Dallas RCBO
1445 Ross Avenue, Suite 300
Dallas, Texas 75202
Facsimile No.: (214) 740-1543
Attention: Kyle Hranicky
Eurodollar
Office: Dallas RCBO
1445 Ross Avenue, Suite 300
Dallas, Texas 75202
Facsimile No.: (214) 740-1543
Attention: Kyle Hranicky
S-6
<PAGE>
THE BANK OF NOVA SCOTIA
By
-------------------------------------------
Title: Senior Manager Loan Operations
Domestic
Office: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, N.E.,
Suite 2700
Atlanta, Georgia 30308
Facsimile No.: (404) 888-8998
Attention: F.C.H. Ashby
Eurodollar
Office: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, N.E.,
Suite 2700
Atlanta, Georgia 30308
Facsimile No.: (404) 888-8998
Attention: F.C.H. Ashby
With a copy to:
The Bank of Nova Scotia
Houston Representative Office
1100 Louisiana, Suite 3000
Houston, Texas 77002
Facsimile No.: (713) 752-2425
Attention: Rosine Matthews
Relationship Manager
S-7
<PAGE>
SANWA BANK CALIFORNIA
By
--------------------------------------
Title: Vice President
Domestic
Office: Oakland Commercial Banking
Office, 2nd Floor
2127 Broadway
Oakland, California 94612
Facsimile No.: (510) 268-0700
Attention: Arcy Ledezma
Eurodollar
Office: Oakland Commercial Banking
Office, 2nd Floor
2127 Broadway
Oakland, California 94612
Facsimile No.: (510) 268-0700
Attention: Arcy Ledezma
S-8
<PAGE>
U.S. BANK OF CALIFORNIA
By
-----------------------------------------
Title: Vice President
Domestic
Office: 2890 North Main Street
Walnut Creek, CA 94596
Facsimile No.: (510) 472-6919
Attention: Dan Stevens
Eurodollar
Office: 2890 North Main Street
Walnut Creek, CA 94596
Facsimile No.: (510) 472-6919
S-9
<PAGE>
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By
-----------------------------------------
Title: Senior Vice President
Domestic
Office: P. O. Box 660197
Dallas, Texas 75266-0197
Facsimile No.: (214) 965-2044
Attention: Mae Kantipong
Eurodollar
Office: P. O. Box 660197
Dallas, Texas 75266-0197
Facsimile No.: (214) 965-2044
S-10
<PAGE>
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 7.7 LITIGATION
Description of Proceeding Action or Claim Sought
------------------------- ----------------------
ITEM 7.8 EXISTING SUBSIDIARIES
State of Ownership Business
Name Incorporation % Description
- ---- ------------- --------- -----------
ITEM 7.9 OWNERSHIP OF PROPERTIES
ITEM 7.11 EMPLOYEE BENEFIT PLANS
ITEM 7.12 ENVIRONMENTAL MATTERS
ITEM 7.15 COMPLIANCE WITH LAWS
ITEM 8.2.2(b) ONGOING INDEBTEDNESS
Creditor Outstanding Principal Amount
-------- ----------------------------
ITEM 8.2.3(j) ONGOING LIENS
Outstanding
Principal
Creditor Amount Description of Collateral
- -------- ----------- -------------------------
ITEM 8.2.5(b) ONGOING INVESTMENTS
ITEM 8.2.8(d) PROPERTIES HELD FOR SALE
<PAGE>
SCHEDULE I
ITEM 7.7
LITIGATION
1. Asbestos Litigation.
2. See item 3 to Borrower's Form 10-K for the year ended December 31, 1995
and Part II, item 1 to Borrower's Form 10-Q for the quarterly period ended
September 30, 1996.
1
<PAGE>
ITEM 7.8
EXISTING SUBSIDIARIES
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
NAME STATE OF OWNERSHIP BUSINESS DESCRIPTION
INCORPORATION
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Fibreboard Box & Delaware 100% Inactive
Millwork Corporation
- ----------------------------------------------------------------------------------------------------
Pabco Metals Delaware 100% Manufacture and sale
Corporation* of metal jacketing,
insulation and
fireproofing
materials.
- ----------------------------------------------------------------------------------------------------
Stone Products California 100% Manufacture and sale
Corporation* of cultured stone
products.
- ----------------------------------------------------------------------------------------------------
Carriage Hill Stone Ohio 100% Manufacture and sale
Company Stone of cultured stone
Products products.
- ----------------------------------------------------------------------------------------------------
Norandex Inc. * Delaware 100% Manufacture and
sale of vinyl siding
and distribution of
exterior building
products.
- ----------------------------------------------------------------------------------------------------
Vytec Corporation Ontario 100% by Manufacture and sale
Norandex of vinyl siding.
- ----------------------------------------------------------------------------------------------------
Vytec Sales Delaware 100% Distributor of Vytec
Corporation* Corporation's
products in the
United States.
- ----------------------------------------------------------------------------------------------------
Aristocrat Window Delaware 100% Inactive.
Company
- ----------------------------------------------------------------------------------------------------
Pacific Coast Missouri 100% by Inactive.
Redevelopment Norandex
Corporation
- ----------------------------------------------------------------------------------------------------
10110 Newfoundland Newfoundland 100% by Distributor of Vytec
Limited Vytec Corporation's
products in
Newfoundland
- ----------------------------------------------------------------------------------------------------
2
<PAGE>
- ----------------------------------------------------------------------------------------------------
NAME STATE OF OWNERSHIP BUSINESS DESCRIPTION
INCORPORATION
- ----------------------------------------------------------------------------------------------------
Procanpol SP.Z.O.O. Poland 68% by Distributor of Vytec
Vytec Corporation's
products in Poland.
- ----------------------------------------------------------------------------------------------------
Prestige Vinyl Siding, Ontario 100% by Inactive.
Inc. Vytec
- ----------------------------------------------------------------------------------------------------
Accord Vinyl Siding, Ontario 100% by Inactive.
Inc. Vytec
- ----------------------------------------------------------------------------------------------------
Vytec Pty. Limited Australia 100% by Inactive.
Vytec
- ----------------------------------------------------------------------------------------------------
Accord Vinyl Siding Australia 100% by Inactive.
Pty. Limited Vytec
- ----------------------------------------------------------------------------------------------------
Prestige Vinyl Siding Australia 100% by Inactive.
Pty. Limited Vytec
- ----------------------------------------------------------------------------------------------------
Mastic Pty. Limited Australia 100% by Inactive.
Vytec
- ----------------------------------------------------------------------------------------------------
</TABLE>
* Significant Subsidiaries
3
<PAGE>
ITEM 7.9
OWNERSHIP OF PROPERTIES
None
4
<PAGE>
ITEM 7.11
EMPLOYEE BENEFIT PLANS
See notes 7 and 8 to Borrower's consolidated financial statements for the year
ended December 31, 1995 for a discussion of Borrower's employee benefit plans.
5
<PAGE>
ITEM 7.12
ENVIRONMENTAL MATTERS
See Item 7.7 above.
6
<PAGE>
ITEM 7.15
COMPLIANCE WITH LAWS
None
7
<PAGE>
ITEM 8.2.2(b)
ONGOING INDEBTEDNESS
--------------------
CREDITOR AMOUNT
- -------- ------
CA Pollution Control
Financing Authority
(1974 Pollution Control Revenue Bonds) 3,765,000.00
First Trust California
(Debentures due in 1998) 224,050.00
In addition to the above scheduled ongoing Indebtedness, Borrower's financial
statements reflect liabilities related to or resulting from the Asbestos
Litigation. Certain of these liabilities may arguably be considered
Indebtedness. Borrower anticipates such amounts will increase in the future.
8
<PAGE>
ITEM 8.2.3(j)
ONGOING LIENS
None
9
<PAGE>
ITEM 8.2.5(b)
ONGOING INVESTMENTS
-------------------
DESCRIPTION AMOUNT
- ----------- ------
NOTES FROM ASSET/REAL ESTATE SALES:
Northstar Residential Sales 1,603,584.00
Sale of Burney Site 193,785.00
(Sold in 1992)
Sale of New Mexico Timber Rights 100,000.00
(Sold in 1995)
Sale of Container Facility to Gaylord:
CA Pollution Control Mirror Note 3,765,000.00
Sale of Wallace Site 263,000.00
TRUST ACCOUNTS:
- ---------------
Directors & Officers 5,003,156.00
John Roach 1,644,510.00
(Per employment contract)
SERP Rabbi Trust 1,139,193.00
STOCK:
- ------
Norandex Inc. holds 849 shares of common stock of Grossman's Inc.
CERTIFICATES:
- -------------
Job Training Certificate (Joplin, Missouri) 395,000.00
10
<PAGE>
ITEM 8.2.8(d)
PROPERTIES HELD FOR SALE
------------------------
(i) The property known as "Hobart Mills" consisting of approximately
121+ acres located in Nevada County, California.
(ii) The property known as "Brockway Summit" consisting of approximately
788+ acres located in Placer County, California.
(iii) The property known as the "Turlock Mill Site" consisting of 27+ acres
located in Stanislaus County, California.
(iv) Undeveloped property consisting of approximately 65+ acres located in
Fruita, Colorado.
11
<PAGE>
SCHEDULE II
Original Restated
Percentage Percentage
---------- ----------
Bank of America National
Trust and Savings Association 18.333333334 16.0
ABN AMRO Bank N.V. 15.0 14.0
Nationsbank N.A. 18.333333334 16.0
Wells Fargo Bank, National
Association 13.333333333 12.0
Sanwa Bank California 13.333333333 10.0
The Bank of Nova Scotia 8.333333333 10.0
Texas Commerce Bank 13.333333333 12.0
U.S. Bank of Oregon 0.0 10.0
<PAGE>
SCHEDULE III
GUARANTEED FACILITY INDEBTEDNESS
The Revolving Credit Agreement,
dated as of March 27, 1996,
between Vytec Corporation and
The Bank of Nova Scotia.
<PAGE>
SCHEDULE IV
LETTERS OF CREDIT
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
FIBREBOARD CORPORATION - LETTERS OF CREDIT
- -------------------------------------------------------------------------------
AS OF: 20-Mar-97
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
L/C NO. L/C AMOUNT EXPIRY DATE EVERGREEN?
- -------------------------------------------------------------------------------
220908 $3,136,388.00 7/31/97 Y
- -------------------------------------------------------------------------------
221693 $ 100,000.00 7/16/97 Y
- -------------------------------------------------------------------------------
221695 $1,000,000.00 9/28/97 Y
- -------------------------------------------------------------------------------
226648 $ 475,000.00 6/30/99 N
- -------------------------------------------------------------------------------
3002429 $ 797,368.00 11/25/97 Y
- -------------------------------------------------------------------------------
$5,508,756.00
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT A-1
FORM OF
FOURTH AMENDED AND RESTATED
MASTER PROMISSORY NOTE
(Revolving Loans)
March 28, 1997
FOR VALUE RECEIVED, the undersigned, FIBREBOARD CORPORATION, a Delaware
corporation (the "COMPANY"), hereby promises to pay to the order of
__________________________________________________ (the "LENDER") the aggregate
unpaid principal amounts of all Revolving Loans made by the Lender to the
Company from time to time pursuant to the Credit Agreement described below at
the times and in the amounts specified in the Credit Agreement. The Company
further promises to pay interest on such unpaid principal amounts at the times
and at the rates specified in the Credit Agreement.
The Lender is hereby authorized to endorse the date, amount and maturity of
each Revolving Loan made by it and the amount and date of each payment of
principal made by the Company with respect thereto on the schedule annexed to
this Note and on continuations of such schedule, both schedule and continuations
being hereby made a part of this Note; provided, that any failure to endorse
such information on such schedule or continuation thereof shall not in any
manner affect any obligation of the Company under the Agreement and this Note.
This Master Promissory Note is one of the Revolving Notes referred to
in, and is issued under, the Fourth Amended and Restated Credit Agreement,
dated as of March 28, 1997 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among the Company, Vytec
Corporation, the various financial institutions (including the Lender) as
are, or may from time to time become, parties thereto, Bank of America
National Trust and Savings Association, as Administrative Co-Agent, and
Nationsbank, N.A., as the Documentation Co-Agent.
The holder of this Master Promissory Note shall be entitled to the benefits
provided for in the Credit Agreement to a Lender of Revolving Loans. Reference
is made to the Credit Agreement for the provisions on (i) the obligation of the
Lender to advance funds under this Master Promissory Note, (ii) the manner in
which interest is computed and accrued, (iii) the Company's rights, if any, to
prepay all or part of the Revolving Loans, (iv) the events upon which the
maturity of this Master Promissory Note may be accelerated or shall be
automatically accelerated, as the case may be, (v) attorney's fees (including
allocated costs of internal legal services) and other fees and expenses incurred
in any enforcement of this Master Promissory Note, (vi) the Company's right to
cure certain Events of Default, and (vii) the Lender's rights
<PAGE>
to assign all or part of this Master Promissory Note to Assignees and/or to
sell participating interests in any Revolving Loans, as more fully set forth
in the Credit Agreement. Terms defined in the Credit Agreement shall have the
same meanings herein.
Principal and interest are payable in immediately available funds to Bank
of America National Trust and Savings Association as Administrative Co-Agent for
the Lender, at 1850 Gateway Boulevard, Concord, California, for credit to
Account No. 12336-14323 ABA No. 121-000-358-SF, Attention: Agency Management
Services #5596 or such other place or places as Bank of America National Trust
and Savings Association may specify in writing from time to time to the
undersigned.
THIS MASTER PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
IN WITNESS WHEREOF, the undersigned has caused this Master Promissory Note
to be executed by its officer thereunto duly authorized.
FIBREBOARD CORPORATION
By:
----------------------------------
Title:
-2-
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
Date Loan Date
Disbursed Amount of Loan Maturity Date Principal Payment Principal Paid
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
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</TABLE>
-3-
<PAGE>
EXHIBIT A-2
FORM OF
AMENDED AND RESTATED
MASTER PROMISSORY NOTE
(Term Loans)
March 28, 1997
FOR VALUE RECEIVED, the undersigned, VYTEC CORPORATION, a corporation
organized under the laws of the province of Ontario, Canada (the "COMPANY"),
hereby promises to pay to the order of ______________________________________
(the "LENDER") the aggregate unpaid principal amounts of all Term Loans made
by the Lender to the Company from time to time pursuant to the Credit Agreement
described below at the times and in the amounts specified in the Credit
Agreement. The Company further promises to pay interest on such unpaid
principal amounts at the times and at the rates specified in the Credit
Agreement.
The Lender is hereby authorized to endorse the date, amount and maturity of
each Term Loan made by it and the amount and date of each payment of principal
made by the Company with respect thereto on the schedule annexed to this Note
and on continuations of such schedule, both schedule and continuations being
hereby made a part of this Note; provided, that any failure to endorse such
information on such schedule or continuation thereof shall not in any manner
affect any obligation of the Company under the Agreement and this Note.
This Master Promissory Note is one of the Term Notes referred to in, and
is issued under, the Fourth Amended and Restated Credit Agreement, dated as of
March 28, 1997 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among Fibreboard Corporation, the Company, the
various financial institutions (including the Lender) as are, or may from time
to time become, parties thereto, Bank of America National Trust and Savings
Association, as Administrative Co-Agent, and Nationsbank, N.A., as the
Documentation Co-Agent.
The holder of this Master Promissory Note shall be entitled to the benefits
provided for in the Credit Agreement to a Lender of Term Loans. Reference is
made to the Credit Agreement for the provisions on (i) the obligation of the
Lender to advance funds under this Master Promissory Note, (ii) the manner in
which interest is computed and accrued, (iii) the Company's rights, if any, to
prepay all or part of the Term Loans, (iv) the events upon which the maturity of
this Master Promissory Note may be accelerated or shall be automatically
accelerated, as the case may be, (v) attorney's fees (including allocated costs
of internal legal services) and other fees and expenses incurred in any
enforcement of this Master Promissory Note, (vi) the Company's right to cure
certain Events of Default, and (vii) the Lender's rights to assign all or
<PAGE>
part of this Master Promissory Note to Assignees and/or to sell participating
interests in any Term Loans, as more fully set forth in the Credit Agreement.
Terms defined in the Credit Agreement shall have the same meanings herein.
Principal and interest are payable in immediately available funds to Bank
of America National Trust and Savings Association as Administrative Co-Agent for
the Lender, at 1850 Gateway Boulevard, Concord, California, for credit to
Account No. 12336-14323 ABA No. 121-000-358-SF, Attention: Agency Management
Services #5596 or such other place or places as Bank of America National Trust
and Savings Association may specify in writing from time to time to the
undersigned.
THIS MASTER PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
IN WITNESS WHEREOF, the undersigned has caused this Master Promissory Note
to be executed by its officer thereunto duly authorized.
VYTEC CORPORATION
By:
-----------------------------------
Title:
-2-
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
Date Loan Date
Disbursed Amount of Loan Maturity Date Principal Payment Principal Paid
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
EXHIBIT B
FORM OF
REVOLVING BORROWING REQUEST
Bank of America National Trust
and Savings Association, as
Administrative Agent
1455 Market Street
12th Floor
San Francisco, CA 94103
Attention: [NAME]
[TITLE]
FIBREBOARD CORPORATION
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
the Fourth Amended and Restated Credit Agreement, dated as of March 28, 1997
(together with all amendments, if any, from time to time made thereto, the
"CREDIT AGREEMENT"), among Fibreboard Corporation, a Delaware corporation (the
"REVOLVING BORROWER"), Vytec Corporation, a corporation organized under the laws
of the province of Ontario, Canada, certain financial institutions, and Bank of
America National Trust and Savings Association, as the Administrative Agent and
Nationsbank N.A., as the Documentation Agent. Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Revolving Borrower hereby requests that a Loan be made in the aggregate
principal amount of $___________ on ___________, 19__ as a [EURODOLLAR COMMITTED
LOAN HAVING AN INTEREST PERIOD OF ______ MONTHS] [BASE RATE COMMITTED LOAN).
The Revolving Borrower hereby acknowledges that, pursuant to Section 6.2.2
of the Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Revolving Borrower of the proceeds of the Revolving Loans
requested hereby constitute a representation and warranty by the Revolving
Borrower that, on the date of such Revolving Loans, and before and after giving
effect there to and to the application of the proceeds therefrom, all statements
set forth in SECTION 6.2.1 are true and correct in all material respects. In
addition, Revolving Borrower hereby certifies that after giving effect to the
Borrowing requested by this Borrowing Request, the sum of (i) the aggregate
principal amount of Revolving Loans outstanding, PLUS (ii) Letter of Credit
Outstandings PLUS (iii) the Letter of Credit Availability, will not exceed the
Revolving Commitment Amount.
<PAGE>
The Revolving Borrower agrees that if prior to the time of the Borrowing
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent. Except to the extent, if any, that prior to the time of
the Borrowing requested hereby the Administrative Agent shall receive written
notice to the contrary from the Revolving Borrower, each matter certified to
herein shall be deemed once again to be certified as true and correct at the
date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following persons at the financial institutions indicated respectively:
Person to be Paid
Amount to be ---------------------------- Name, Address, etc.
Transferred Name Account No. of Transferee
- ----------- ---- ----------- -------------------
$_______________ ____________ ___________ ___________________
___________________
Attention: ___________________
$_______________ ____________ ___________ ___________________
___________________
Attention: ___________________
Balance of Revolving ___________ ___________________
such proceeds Borrower ___________ ___________________
Attention: ___________________
The Revolving Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this _______ day of _________________, __________.
FIBREBOARD CORPORATION
By
--------------------------------
Title:
-2-
<PAGE>
EXHIBIT C
FORM OF
CONTINUATION/CONVERSION NOTICE
Bank of America National Trust
and Savings Association, as
Administrative Agent
1455 Market Street
12th Floor
San Francisco, CA 94103
Attention: [NAME]
[TITLE]
[BORROWER]
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to Section
2.4 of the Fourth Amended and Restated Credit Agreement, dated as of March 28,
1997 (together with all amendments, if any, from time to time made thereto, the
"Credit Agreement"), among Fibreboard Corporation, a Delaware corporation, Vytec
Corporation, a corporation organized under the laws of the province of Ontario,
Canada, certain financial institutions, and Bank of America National Trust and
Savings Association, as the Administrative Agent and Nationsbank N.A., as the
Documentation Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
The [BORROWER] hereby requests that on ____________, 19___,
(1) $___________ of the presently outstanding principal amount of the
Loans originally made on ___________ 19____ [AND $___________ OF THE
PRESENTLY OUTSTANDING PRINCIPAL AMOUNT OF THE LOANS ORIGINALLY MADE ON
___________, 19___],
(2) and all presently being maintained as [BASE RATE COMMITTED LOANS]
[EURODOLLAR COMMITTED LOANS],
(3) be [CONVERTED INTO] [CONTINUED AS],
(4) [EURODOLLAR COMMITTED LOANS HAVING AN INTEREST PERIOD OF ______
MONTHS] [BASE RATE COMMITTED LOANS].
The [BORROWER] hereby:
-1-
[cad 157]<PAGE>
(a) certifies and warrants that no Default has occurred and is
continuing; and
(b) agrees that if prior to the time of such continuation or
conversion any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Administrative Agent shall receive written
notice to the contrary from the [BORROWER], each matter certified to herein
shall be deemed to be certified at the date of such continuation or conversion
as if then made.
[BORROWER] has caused this Continuation/Conversion Notice to be executed
and delivered, and the certification and warranties contained herein to be made,
by its Authorized Officer this _____ day of __________, 19____.
[BORROWER]
By
--------------------------------
Title:
-2-
<PAGE>
EXHIBIT D
FORM OF
LENDER ASSIGNMENT AGREEMENT
To: Fibreboard Corporation
Vytec Corporation
To: Bank of America National Trust
National Trust and Savings Association,
as the Administrative Agent
To: [ISSUERS OF LETTERS OF CREDIT]
FIBREBOARD CORPORATION AND VYTEC CORPORATION
Gentlemen and Ladies:
We refer to clause (d) of Section 11.11.1 of the Fourth Amended and
Restated Credit Agreement, dated as of March 28, 1997 (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "CREDIT AGREEMENT"), among Fibreboard Corporation, a Delaware
corporation, Vytec Corporation, a corporation organized under the laws of the
province of Ontario, Canada, the various financial institutions (the "LENDERS")
as are, or shall from time to time become, parties thereto and Bank of America
National Trust arid Savings Association as the Administrative Agent and
Nationsbank N.A., as the Documentation Agent. Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
This agreement is delivered to you pursuant to clause (d) of Section
11.11.1 of the Credit Agreement and also constitutes notice to each of you,
pursuant to clause (c) of Section 11.11.1 of the Credit Agreement, of the
assignment and delegation to _______________ (the "ASSIGNEE") of ___% of the
[BID LOANS] [SWINGLINE LOANS AND SWINGLINE COMMITMENT] [LOANS AND COMMITMENTS]
of ____________ (the "ASSIGNOR") outstanding under the Credit Agreement on the
date hereof. After giving effect to the foregoing assignment and delegation,
the Assignor's and the Assignee's Percentages for the purposes of the Credit
Agreement are set forth opposite such Person's name on the signature pages
hereof.
[ADD PARAGRAPH DEALING WITH ACCRUED INTEREST AND FEES WITH RESPECT TO LOANS
ASSIGNED.]
The Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with copies
of the documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Credit Extensions thereunder. The
Assignee further confirms and agrees that in becoming a Lender
-1-
<PAGE>
and in making its Commitments and Loans under the Credit Agreement, such
actions have and will be made without recourse to, or representation or
warranty by the Documentation Agent or the Administrative Agent.
Except as otherwise provided in the Credit Agreement, effective as of the
date of acceptance hereof by the Administrative Agent
(a) the Assignee
(i) shall be deemed automatically to have become a party to
the Credit Agreement, have all the rights and obligations of a
"Lender" under the Credit Agreement and the other Loan Documents
as if it were an original signatory thereto to the extent
specified in the second paragraph hereof; and
(ii) agrees to be bound by the terms and conditions set
forth in the Credit Agreement and the other Loan Documents as if
it were an original signatory thereto; and
(b) the Assignor shall be released from its obligations under
the Credit Agreement and the other Loan Documents to the extent
specified in the second paragraph hereof.
The Assignor and the Assignee hereby agree that the [ASSIGNOR] [ASSIGNEE]
will pay to the Administrative Agent the processing fee referred to in Section
11.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned [BID LOANS] [SWINGLINE LOANS AND SWINGLINE
COMMITMENT] [LOANS AND COMMITMENTS] and requests the Administrative Agent to
acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback):
Eurodollar Office:
Telephone:
-2-
<PAGE>
Facsimile:
Telex (Answerback):
(B) Payment Instructions:
The Assignee agrees to furnish the tax form required by the last sentence
of Section 5.6 (if so required) of the Credit Agreement no later than the date
of acceptance hereof by the Administrative Agent.
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
Adjusted Percentage [ASSIGNOR]
Loans:1 ___%
Letters of Credit: ___%
By:
-------------------------------
Title:
Percentage [ASSIGNEE]
Loans:(2) ___%
Letters of Credit: ___%
By:
-------------------------------
Title:
Accepted and Acknowledged
this ____ day of ________, 19
______________________________
as Administrative Agent
By:
---------------------------
Title:
- ------------------------------
as an Issuer
By:
- ------------------------------
Title:
- -------------------
(1) Insert appropriate information regarding portions of facility retained
by assignor.
(2) Insert appropriate information concerning portions of facility
assigned to assignee.
-3-
<PAGE>
EXHIBIT E-1
FORM OF OPINION OF
BORROWER'S COUNSEL
--------------------
BROBECK
PHLEGER &
HARRISON
LLP
ATTORNEYS AT LAW
--------------------
TELEPHONE: (415) 442-0900 SPEAR STREET TOWER
FACSIMILE: (415) 442-1010 ONE MARKET
WRITER'S DIRECT DIAL: SAN FRANCISCO
CALIFORNIA 94105
March 28, 1997
The Lenders party to the Amended
Credit Agreement referred to below,
Bank of America National Trust and
Savings Association, as Administrative
Co-Agent, and NationsBank, N.A.
as Documentation Co-Agent
Re: FIBREBOARD CORPORATION
Ladies and Gentlemen:
This opinion letter is furnished to you pursuant to Section 6.1.5 of the
Fourth Amended and Restated Credit Agreement dated as of March 28, 1997 (the
"Amended Credit Agreement"), among Fibreboard Corporation (the "Revolving
Borrower"), Vytec Corporation (the "Term Borrower"), the various financial
institutions which are parties thereto (collectively, the "Lenders"), Bank of
America National Trust and Savings Association, as Administrative Co-Agent for
such Lenders (the "Administrative Agent"), and Nationsbank, N.A., as
Documentation Co-Agent for such Lenders (the "Documentation Agent"; each of the
Administrative Agent and the Documentation Agent sometimes hereinafter referred
to in this opinion individually as a "Co-Agent" and together as "Co-Agents").
Unless otherwise defined herein, terms used herein shall have the meanings
assigned to them in the Amended Credit Agreement. We have acted as counsel for
the Revolving Borrower, the Term Borrower, Pabco Metals Corporation ("Pabco"),
Norandex Inc. ("Norandex"), Vytec Sales Corporation ("Vytec Sales") and Stone
Products Corporation ("Stone") in connection with the Amended Credit Agreement.
As used herein, "Guarantors" means Pabco, Norandex, Vytec Sales and Stone;
"Companies" means the Revolving Borrower, the Term Borrower and the Guarantors;
and "U.S. Companies" means each of the Companies other than the Term Borrower.
In connection with this opinion letter, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates, including certificates of public officials, and
other instruments as we have deemed necessary or advisable for purposes of this
opinion letter, including those relating to the authorization, execution and
delivery of the amended Credit Agreement.
SAN FRANCISCO PALO ALTO LOS ANGELES ORANGE COUNTY SAN DIEGO NEW YORK
AUSTIN DENVER LONDON*
*BROBECK HALE AND DORR INTERNATIONAL OFFICE
<PAGE>
March 28, 1997 Page 2
In addition, we have examined the following documents (the items referred to in
subclauses (i) through (iii) below herein referred to as the "Company
Documents"):
(i) an executed copy of the Amended Credit Agreement;
(ii) the Revolving Notes executed by the Borrower in favor of the
Lenders (the "Notes");
(iii) executed copies of the Guaranty dated as of March 28, 1997, of
Stone, the Guaranty dated as of February 6, 1996, of Pabco, Norandex and
Vytec Sales, as confirmed by the Confirmation of Guaranty dated as of March
28, 1997, of Pabco, Norandex and Vytec Sales, and the Guaranty dated as of
February 6, 1996, of the Revolving Borrower, as confirmed by the
Confirmation of Guaranty dated as of March 28, 1997, of the Revolving
Borrower (each a "Guaranty" and, collectively, the "Guaranties");
(iv) the Certificate of Incorporation and the Bylaws of each U.S.
Company, each as in effect on the date hereof;
(v) an executed copy of the certificate of the Secretary of each
U.S. Company, certifying: (A) true copies of the resolutions of the Board
of Directors of such U.S. Company authorizing, among other things, the
execution, delivery and performance of the Company Documents to which such
U.S. Company is a party, and (B) the incumbency, authority and true
signatures of the officers of such U.S. Company authorized to sign such
Company Documents and any other documents and certificates delivered in
connection therewith;
(vi) an executed copy of the certificate (the "Officer's
Certificate") of the Vice President Finance of the Revolving Borrower, the
Vice President/Treasurer of Pabco, the Vice President/Treasurer of
Norandex, the Vice President/Treasurer of Vytec Sales, the Vice
President/Treasurer of Stone and the Vice President of the Term Borrower;
(vii) the opinion of Messrs. Fraser & Beatty, Canadian counsel to the
Term Borrower, dated March 28, 1997; and
(viii) such other documents as we have deemed necessary or appropriate
as a basis for the opinions hereinafter expressed.
We have also examined photostatic or facsimile copies of the
agreements identified in Exhibit A to the Officer's Certificate (the "Material
Agreements"). In our examination and review we have assumed the genuineness of
all signatures, the legal
<PAGE>
March 28, 1997 Page 3
capacity of natural persons, the authenticity of the documents submitted to
us as originals, the conformity to the original documents of all documents
submitted to us as certified, facsimile or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to the
opinions hereinafter expressed which we did not independently establish or
verify, we have relied without investigation upon certificates, statements
and representations of representatives of the Companies. Regarding documents
executed by parties other than the U.S. Companies, we have assumed (i) that
each such other party had the power to enter into and perform all its
obligations thereunder, and (ii) the due authorization, execution and
delivery of such documents by each such party. Regarding documents executed
by parties other than the Companies, we have assumed that such documents
constitute the legal, valid and binding obligations of each such party.
We refer you to the opinion referred to above given by Messrs. Fraser &
Beatty, containing certain opinions concerning the Term Borrower.
With respect to our opinion in paragraph 1 below as to the good standing of
the U.S Companies in any jurisdictions other than Delaware and California, we
are relying solely on the representations of the U.S. Companies set forth in the
Officer's Certificate and the status searches obtained by us, without further
investigation as to the criteria for qualification or any related legal issues
with respect to such jurisdictions.
Based upon and subject to the foregoing, and subject to the further
assumptions, limitations, qualifications and exceptions set forth herein, we are
of the opinion that:
1. The Revolving Borrower and Pabco each (i) (A) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware (B) with the corporate power and authority to own its properties and
to carry on its business as, to our knowledge, it is now conducted, and (ii) is
qualified as a foreign corporation and in good standing under the laws of the
State of California. Norandex and Vytec Sales each (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware (b) with the corporate power and authority to own its properties and
to carry on its business as, to our knowledge, it is now conducted. Stone (1) is
a corporation duly incorporated, validly existing and in good standing under the
laws of the State of California (2) with the corporate power and authority to
own its properties and to carry on its business as, to our knowledge, it is now
conducted. Each of the Revolving Borrower, Pabco, Norandex and Vytec Sales is
qualified as a foreign corporation and in good standing under the laws of the
State of Texas.
2. Each U.S. Company has the corporate power and authority to enter into
and perform the Company Documents to which it is a party, and has taken all
<PAGE>
March 28, 1997 Page 4
necessary corporate action to authorize the execution, delivery and performance
of the Company Documents to which it is a party.
3. No consents, approvals or authorizations of, or notices to or filings
with, any governmental authority or agency under the laws of the State of
California or the laws of the United States, as presently in effect and
interpreted, are required or necessary on the part of the Companies in
connection with the execution and delivery by the Companies of the Company
Documents.
4. Each Company Document to which the Revolving Borrower is a party
constitutes the legal, valid and binding obligation of the Revolving Borrower,
enforceable against the Revolving Borrower in accordance with its terms.
5. The Guaranty of each Guarantor constitutes the legal, valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms.
6. Each Company Document to which the Term Borrower is a party
constitutes the legal, valid and binding obligation of the Term Borrower,
enforceable against the Term Borrower in accordance with its terms.
7. The execution, delivery or performance by each U.S. Company of the
Company Documents to which it is a party do not and will not (i) violate or be
in conflict with any provision of the Certificate of Incorporation or Bylaws of
such U.S. Company, or (ii) violate or conflict with or constitute a default
under or result in the termination of, accelerate the performance required by,
or result in the creation of any lien, security interest, charge or encumbrance
upon any of the assets or properties of any U.S. Company under, any term or
provision of any of the Material Agreements. The execution, delivery or
performance by each Company of the Company Documents to which it is a party do
not and will not (A) violate or be in conflict with any federal or California
law having applicability to such Company, as presently in effect and
interpreted, or (B) to our knowledge, violate or contravene any judgment,
decree, injunction or order of any federal or California court, or any
arbitrator or governmental agency or authority, having jurisdiction over such
Company or its properties or by which such Company may be bound.
8. We have no knowledge of any pending litigation or other proceedings
against the Revolving Borrower or its properties before any court, arbitrator or
governmental agency or authority which challenge the validity or enforceability
of the Company Documents or, except for those matters disclosed in Item 7.7 of
the Disclosure Schedule, which, if determined adversely to the Revolving
Borrower, would be likely to have a material adverse effect on the Revolving
Borrower.
<PAGE>
March 28, 1997 Page 5
Whenever a statement herein is qualified by the expressions "known to us,"
"to our knowledge," "we are not aware" or a similar phrase with respect to our
knowledge of matters of fact, it is intended to mean that our knowledge is based
upon the records, documents, instruments and certificates described above and
the current actual knowledge of the attorneys in this Firm who have devoted
substantive attention to the transactions contemplated by the Company Documents
or, with respect to the opinion expressed in paragraph 8 above, who are
presently involved in substantive legal representation of the Revolving Borrower
(but not including any constructive or imputed notice of any information) and
that we have not otherwise undertaken any independent investigations for the
purpose of rendering this opinion.
This opinion is limited to the laws of the State of California, the General
Corporation Law of the State of Delaware and applicable federal laws of the
United States, and we express no opinion herein with respect to the effect or
applicability of the laws of other jurisdictions.
Our opinions in paragraph 3 above and in clause (B) of paragraph 7 above
are limited to laws and regulations normally applicable to transactions of the
type contemplated in the Company Documents and do not extend to licenses,
permits and approvals necessary for the conduct of any Company's business. In
addition and without limiting the previous sentence, we express no opinion
herein with respect to the effect of any land use, environmental or similar law,
any state or federal antitrust law, state or federal securities laws, or any
local law.
The opinions set forth above are subject to the following qualifications,
assumptions, limitations and exceptions:
(a) The validity, binding nature and enforce ability of each Company's
obligations under the Company Documents are subject to the effect of (i)
bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
transfer and other similar laws affecting the rights of creditors generally;
(ii) the discretion of any court of competent jurisdiction in awarding equitable
remedies, including, without limitation, specific performance or injunctive
relief, and the effect of general principles of equity embodied in California
statutes and common law; and (iii) the effect of California court decisions and
statutes which indicate that provisions of the Company Documents which permit
any Co-Agent, any of the Lenders or any other Person to take action or make
determinations may be subject to a requirement that such action be taken or such
determinations be made on a reasonable basis in good faith or that it be shown
that such action is reasonably necessary for the protection of such Co-Agent,
such Lender or such other Person.
(b) We express no opinion as to:
<PAGE>
March 28, 1997 Page 6
(1) the enforceability of provisions of the Company Documents
pursuant to which any Company agrees to make payments without set-off, defense
or counterclaim;
(2) provisions purporting to require the award or payment of
attorneys' fees, expenses or costs in any action where any Lender or Co-Agent is
not the prevailing party, or the impact of California Civil Code ("CC") Section
1717 ET SEQ. on any such provisions;
(3) under certain circumstances, provisions to the effect that
rights or remedies are not exclusive, that every right or remedy is cumulative
and may be exercised in addition to or with any other right or remedy, that the
election of some particular remedy or remedies does not preclude recourse to one
or another remedy or that failure to exercise or delay in exercising rights or
remedies will not operate as a waiver of any such right or remedy;
(4) provisions prohibiting waivers of any terms or provisions of
any of the Company Documents other than in writing, or prohibiting oral
modifications thereof or modification by course of dealing to the extent such
provisions are inconsistent with applicable law;
(5) the enforceability under certain circumstances of provisions
indemnifying a party against, or requiring contributions toward, that party's
liability for its own wrongful or negligent acts or where such indemnification
or contribution is contrary to public policy or prohibited by law;
(6) any provision providing for the exclusive jurisdiction of a
particular court or purporting to waive rights to trial by jury, service of
process or objections to the laying of venue or to forum on the basis of forum
NON CONVENIENS, in connection with any litigation arising out of or pertaining
to the Company Documents;
(7) provisions providing for an increase in the rate of interest or
imposing a late charge or penalty in the event of delinquency or default;
(8) provisions imposing a prepayment charge, fee or penalty based
upon a percentage or fraction of the amount prepaid or the amount outstanding
under the Amended Credit Agreement, except in the case of a voluntary prepayment
by the Revolving Borrower or the Term Borrower;
(9) provisions purporting to waive statutory or common law rights,
including the right to receive notice or to be allowed to cure, reinstate or
redeem in the event of default, and provisions expressly or by implication
waiving broadly or vaguely stated rights, unknown future rights and defenses to
obligations, in each case to
<PAGE>
March 28, 1997 Page 7
the extent such rights or defenses are not waivable under applicable law and,
without limiting the generality of the foregoing, Sections 2.3 and 5.2 of
each Guaranty, to the extent of the possible ineffectiveness under applicable
law of any of the consents and waivers therein;
(10) provisions purporting to designate the Administrative Agent as
any Company's agent or attorney in fact;
(11) provisions purporting to waive any applicable statutes of
limitation;
(12) provisions authorizing any Lender to set off and apply any
deposits at any time held, and any other indebtedness at any time owing, by such
Lender to or for the account of any Company; and
(13) Section 10.14 of the Amended Credit Agreement.
(c) Our opinions are subject to the effect of judicial decisions which may
permit the introduction of extrinsic evidence to interpret the terms of written
contracts.
(d) Insofar as this opinion letter concerns the law of the State of
California limiting the rates of interest legally chargeable or collectible, we
have relied upon our understanding that each of the Lenders is (i) a subsidiary
of a bank holding company or is a bank organized under the laws of the United
States or any State thereof or (ii) a foreign (other nation) bank within the
meaning of Section 1716 of the California Financial Code, and such Lender (A)
has assets equal to at least $100,000,000, (B) is licensed to maintain an office
in California, (C) is licensed or otherwise authorized by another state of the
United States to maintain an agency or branch in such state, or (D) maintains a
Federal agency or Federal branch in any state of the United States and, as a
result thereof, is exempt from the restrictions of Section 1 of Article XV of
the Constitution of the State of California relating to rates of interest upon
the loan of money. We further assume in this regard that all Loans have been and
will be made by the Lenders for their own account and without intent to
circumvent otherwise applicable interest rate limitations under California law
and that there is no present express or implied agreement or plan to sell
participations or any other interest in the Loans or the Amended Credit
Agreement to any Person other than a Person that also qualifies for an exemption
from the interest rate limitations of California law.
(e) We wish to point out that the Lenders who are holders of Notes may be
required to prove the outstanding amount thereof.
<PAGE>
March 28, 1997 Page 8
(f) We have assumed that each Lender has complied with any applicable
requirements to file returns or pay California taxes as required by California
Revenue and Taxation Code Section 23301 ET SEQ.
The opinions expressed herein are solely for your benefit in connection
with the above transactions and may not be relied on in any manner or for any
purpose by any other Person, except that the law firm of Mayer, Brown & Platt
may rely hereon in connection with the opinion of such firm to be rendered to
you pursuant to the Amended Credit Agreement. This opinion is rendered as of the
date here of, and we do not undertake to advise you of matters which occur
subsequent to the date hereof and which affect the opinions expressed herein.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
------------------------------------
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT E-2
FORM OF OPINION OF
BORROWER'S CANADIAN COUNSEL
[LOGO]
FRASER & BEATTY
Barristers and Solicitors
March 28, 1997
The Lenders party to the Amended
Credit Agreement referred to below,
Bank of America National Trust and
Savings Association, as Administrative
Co-Agent, and NationsBank, N.A.
as Documentation Co-Agent
Ladies and Gentlemen:
RE: VYTEC CORPORATION
This opinion letter is furnished to you pursuant to Section 6.1.5 of the
Fourth Amended and Restated Credit Agreement dated as of March 28, 1997 (the
"Amended Credit Agreement"), among Fibreboard Corporation, Vytec Corporation
(the "Term Borrower"), the various financial institutions which are parties
thereto (collectively, the "Lenders"), Bank of America National Trust and
Savings Association, as Administrative Co-Agent for such Lenders (the
"Administrative Agent"), and Nationsbank, N.A., as Documentation Co-Agent for
such Lenders (the "Documentation Agent"; each of the Administrative Agent and
the Documentation Agent sometimes hereinafter referred to in this opinion
individually as a "Co-Agent" and together as "Co-Agents"). Unless otherwise
defined herein, terms used herein shall have the meanings assigned to them in
the Amended Credit Agreement. We have acted as special counsel for the Term
Borrower in connection with the Amended Credit Agreement.
In connection with this opinion letter, we have examined and relied on
originals, telecopies or copies certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates (including
certificates of public officials) and other instruments as we have deemed
necessary or advisable for purposes of this opinion letter, including those
relating to the authorization, execution and delivery by the Term Borrower of
the Amended Credit Agreement, and including the following documents (the items
referred to in subclauses (i) and (ii) below herein referred to as the "Company
Documents"):
<PAGE>
2.
FRASER & BEATTY
(i) a telecopy of an executed copy of the Amended Credit Agreement;
(ii) a telecopy of the amended and restated master promissory notes
(term loans) executed by the Term Borrower in favour of various
of the Lenders;
(iii) the Articles of Amalgamation and the Bylaws of the Term
Borrower, each as in effect on the date hereof;
(iv) a telecopy of an executed copy of the certificate of the
Secretary of the Term Borrower dated the date hereof certifying
INTER ALIA: (A) true copies of the resolutions of the Board of
Directors of the Term Borrower authorizing, among other things,
the execution, delivery and performance of the Company
Documents, and (B) the incumbency, authority and true
signatures of the officers of the Term Borrower authorized to
sign the Company Documents and any other documents and
certificates delivered in connection therewith;
(v) a telecopy of an executed copy of the certificate (the
"Officer's Certificate") of the Vice-President of the Term
Borrower dated the date hereof; and
(vi) a certificate of status dated March 24, 1997 issued by the
Ministry of Consumer and Commercial Relations (Ontario) in
respect of the Term Borrower, upon which we have relied for the
purpose of rendering the opinion in paragraph 1 below.
We have also examined photostatic copies of the agreements identified
in EXHIBIT B to the Officer's Certificate (the "Material Agreements"). In our
examinations and reviews we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of the documents submitted
to us as originals, the conformity to the original documents of all documents
submitted to us as certified or photostatic copies or telecopies, the accuracy
of all certificates, and the authenticity of the originals of such copies. As to
any facts material to the opinions hereinafter expressed which we did not
independently establish or verify, we have relied without investigation upon
certificates, statements and representations of representatives of the Term
Borrower. Regarding documents executed by parties other than the Term Borrower,
we have assumed (i) that each such other party had the power to enter into and
perform all its obligations thereunder, (ii) the due authorization of, and the
due execution and delivery
<PAGE>
3.
FRASER & BEATTY
of, such documents by each such party, and (iii) that such documents
constitute the legal, valid and binding obligations of each such party.
We are solicitors qualified to practise in the Province of Ontario
and, accordingly, the opinions expressed herein are restricted to the laws of
the Province of Ontario and the federal laws of Canada applicable therein. In
this opinion, "ONTARIO COURTS" means the courts of the Province of Ontario and
the federal courts constituted by the Parliament of Canada for the better
administration of the laws of Canada, the jurisdiction of which extends to
disputes arising in the Province of Ontario.
Wherever any opinion set forth herein with respect to the existence or
absence of facts is qualified by the phrase "of which we are aware" or "to our
knowledge", it is intended to indicate that, during the course of our
representation of the Term Borrower, no information has come to the attention of
the lawyers in this firm who have devoted substantive attention to the
transactions contemplated by the Company Documents (being Ronald Marshall and
Douglas Scott) which has given us actual knowledge of, or caused us to believe
or suspect, the existence or absence of such facts. Except to the extent
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from the
fact of our representation of the Term Borrower.
Based upon and subject to the foregoing, and subject to the further
assumptions, limitations, qualifications and exceptions set forth herein, we are
of the opinion that:
1. The Term Borrower is a subsisting corporation in good standing
under the laws of the Province of Ontario with the corporate power and authority
to own its properties and to carry on its business as, to our knowledge, it is
now conducted.
2. The Term Borrower has the corporate power and authority to
enter into and perform the Company Documents, and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Company Documents.
3. No consents, approvals or authorizations of, or notices to or
filings with, any governmental authority or agency under the laws of Canada or
the laws of the Province of Ontario, as presently in effect and interpreted, are
required or necessary on the part of the Term Borrower in
<PAGE>
4.
FRASER & BEATTY
connection with the execution and delivery by the Term Borrower of the
Company Documents; provided that in respect of any contract or agreement
between the Term Borrower and any such authority or agency, the foregoing
applies to our knowledge.
4. The execution, delivery or performance by the Term Borrower of
the Company Documents do not and will not (i) violate or be in conflict with any
provision of the Articles of Amalgamation or Bylaws of the Term Borrower, (ii)
violate or be in conflict with any federal or Ontario law having applicability
to the Term Borrower, as presently in effect and interpreted, (iii) to our
knowledge, violate or contravene any judgment, decree, injunction or order of
any federal or Ontario court, or any arbitrator or governmental agency or
authority, having jurisdiction over the Term Borrower or its properties or by
which the Term Borrower may be bound, or (iv) violate or conflict with or
constitute a default under or result in the termination of, accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the assets or properties of the Term
Borrower under, any term or provision of the Material Agreements.
5. To our knowledge there is no pending litigation or other
proceeding against the Term Borrower or its properties before any court,
arbitrator or governmental agency or authority which challenge the validity or
enforceability of the Company Documents or which, if determined adversely to the
Term Borrower, would be likely to have a material adverse effect on the Term
Borrower.
6. The choice of the parties of the laws of the State of
California to govern the Company Documents will, to the extent specifically
pleaded and proved as a fact by expert evidence, be recognized and given effect
to by the Ontario Courts, provided that:
(a) The choice of law was freely made by the parties thereto;
(b) the parties have not chosen the laws of the State of California
for the purpose of evading the provisions of the system of law
to which the transactions contemplated by the Company Documents
are most closely related;
(c) the choice of law will only be effective in regard to
substantive law, and the procedural laws of the jurisdiction in
which the substantive rights are being enforced will apply;
<PAGE>
5.
FRASER & BEATTY
(d) an Ontario Court will not apply those laws of the State of
California which it characterizes as being of a revenue,
expropriatory, penal or public nature; and
(e) enforcement of any provision of the Company Documents in the
Ontario Courts will not be contrary to public policy (as that
term is applied by the Ontario Courts) or a statute protecting
the citizens of Ontario.
7. Any final judgment for a definite sum given by any court in the
State of California (the "foreign court") against the Term Borrower in respect
of the Company Documents would, in an action to enforce such judgment in the
Ontario Courts, be recognized as conclusive and enforceable without
reconsideration of the merits of the action, provided that:
(a) such judgment was for a sum certain in money;
(b) such judgment was final, conclusive and enforceable where
rendered and does not conflict with another final and
conclusive judgment on the same cause of action;
(c) such judgment was not obtained by fraud or in a manner contrary
to natural justice;
(d) the foreign court rendering the judgment was impartial and
provided procedures compatible with the due process and natural
justice standards of the Ontario Courts;
(e) the foreign court that rendered the judgment had jurisdiction
over the Term Borrower and the subject matter and, if
jurisdiction in the foreign court was based on personal service
alone, the foreign court was not a seriously inconvenient forum
for the trial of the action;
(f) the proceedings in the foreign court were not contrary to an
agreement between the parties under which the dispute in
question was to be settled otherwise than by proceedings in
that court;
(g) such judgment was a subsisting judgment and had not been
satisfied;
<PAGE>
6.
FRASER & BEATTY
(h) after the date of judgment in the foreign court, application to
the Ontario Courts to enforce such judgment had been made
within twenty (20) years;
(i) the claim for relief on which the foreign judgment was based
was not repugnant to the public policy of the Province of
Ontario, as that term is applied by the Ontario Courts; and
(j) any monetary judgment by the Ontario Courts relating to a
currency other than Canadian dollars will be expressed as the
amount in Canadian currency necessary to purchase the required
amount of such other currency.
The opinions expressed herein are solely for your benefit in
connection with the above transactions and may not be relied on in any manner or
for any purpose by any other Person, except that the law firms of Mayer, Brown &
Platt and Brobeck, Phleger & Harrison may rely hereon in connection with the
opinions of such firms to be rendered pursuant to the Amended Credit Agreement.
This opinion is rendered as of the date hereof, and we do not undertake to
advise you of matters which occur subsequent to the date hereof and which affect
the opinions expressed herein.
Yours very truly,
/s/ FRASER & BEATTY
<PAGE>
EXHIBIT F
MAYER, BROWN & PLATT FORM OF OPINION OF
ADMINISTRATIVE AGENT'S
350 SOUTH GRAND AVENUE COUNSEL
BERLIN 312-782-0600
BRUSSELS 25TH FLOOR TELEX 190404
HOUSTON FACSIMILE
LONDON LOS ANGELES, CALIFORNIA 90071-1503 312-701-7711
LOS ANGELES
NEW YORK
WASHINGTON
MEXICO CITY CORRESPONDENT
JAURPEGUI, NAVARRETE, NADER Y ROJAS
March 28, 1997
To: The Administrative Agent, the Documentation
Agent and each of the Lenders
now or hereafter parties to the
Credit Agreement referred to below
c/o Bank of America National Trust
and Savings Association
1455 Market Street
12th Floor
San Francisco, California 94103
Re: FIBREBOARD CORPORATION
Ladies/Gentlemen:
This opinion is furnished to you pursuant to Section 6.1.5(c) of that
certain Fourth Amended and Restated Credit Agreement, dated as of March 28, 1997
(the "CREDIT AGREEMENT"), among Fibreboard Corporation, a Delaware corporation
(the "REVOLVING BORROWER"), Vytec Corporation, a corporation formed under the
laws of Ontario, Canada, (the "TERM BORROWER", and together with the Revolving
Borrower, the "BORROWERS"), certain lenders which are or may become parties
thereto (the "LENDERS"), Bank of America National Trust and Savings Association,
as administrative co-agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT") and Nationsbank N.A., as documentation co-agent for the
Lenders (in such capacity, the "DOCUMENTATION AGENT"). Unless otherwise defined
herein, capitalized terms used herein have the meanings provided in the Credit
Agreement.
We have acted as counsel for the Administrative Agent in the preparation,
execution and delivery of the Credit Agreement.
In connection with this opinion, we have examined an original, or copy
certified or otherwise identified to our satisfaction as being a true copy, of a
counterpart of the Credit
<PAGE>
MAYER, BROWN & PLATT
The Administrative Agent, the Documentation
Agent and each of the Lenders
now or hereafter parties to the
Credit Agreement referred to below
March 28, 1997
Page 2
Agreement executed by the Borrowers, the Administrative Agent, the
Documentation Agent and the Lenders.
In addition to the Credit Agreement, we have also reviewed the documents
and opinions of counsel listed on SCHEDULE I attached hereto and furnished
pursuant to the Sections of the Credit Agreement indicated on SCHEDULE I.
For the purposes of this opinion, we have assumed that all items submitted
to us as originals are authentic and all signatures thereon are genuine, and
that all items submitted to us as copies conform to the originals. We also have
assumed that (a) each Borrower duly executed and delivered the Credit Agreement
and all other documents to which such Borrower is a party pursuant to due
authorization, and (b) the Credit Agreement has been duly executed and delivered
by the Administrative Agent, the Documentation Agent and each Lender, pursuant
to due authorization as such party's legal, valid and binding obligation,
enforceable against such party in accordance with its terms (subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law)).
Based upon the foregoing, and subject to the matters stated herein, we are
of the opinion that, under the laws of the State of California:
1. The Credit Agreement constitutes a legal, valid and binding obligation
of each Borrower, enforceable in accordance with its terms.
2. The other documents listed on SCHEDULE I attached hereto are
substantially responsive to the requirements of the Credit Agreement.
Our opinions set forth above are subject to the following qualifications:
<PAGE>
MAYER, BROWN & PLATT
The Administrative Agent, the Documentation
Agent and each of the Lenders
now or hereafter parties to the
Credit Agreement referred to below
March 28, 1997
Page 3
A. Our opinions in paragraph 1 above are subject to the assumptions,
qualifications, exceptions and limitations set forth in the opinions of counsel
to the Borrowers furnished pursuant to clauses (a) and (b) of Section 6.1.5 of
the Credit Agreement.
B. In addition, we advise you that a California court may not strictly
enforce certain covenants contained in the Credit Agreement or allow
acceleration of the maturity of the indebtedness incurred under the Credit
Agreement if it concludes that such enforcement or acceleration would be
unreasonable under the then existing circumstances. We do believe, however,
that subject to the limitations expressed elsewhere in this opinion (including,
without limitation, paragraph A above), enforcement or acceleration would be
available if an Event of Default occurs as a result of a material breach of a
material covenant contained in the Credit Agreement.
C. We express no opinion as to matters of creation or perfection of any
liens or security interests under the Collateral Documents, and we refer you to
the opinion of counsel listed as item 2 on SCHEDULE I attached hereto with
respect to such matters.
D. We express no opinion as to the effect of the law of any jurisdiction
other than the State of California wherein any Lender or any Lender's initial or
successor funding office may be located, or wherein enforcement of the Credit
Agreement or any Note may be sought, which limits the rates of interest legally
chargeable or collectible.
We are members of the Bar of the State of California and for purposes of
this opinion do not purport to be experts on, or to express any opinions herein
concerning, any law other than the laws of the State of California.
This opinion is furnished by us as counsel to the Administrative Agent to
you solely in connection with the transactions described above. This opinion
may be relied upon by the Administrative Agent, the Documentation Agent, each
Lender, any assignee of any Lender, any participant in any Loan, and the
<PAGE>
MAYER, BROWN & PLATT
The Administrative Agent, the Documentation
Agent and each of the Lenders
now or hereafter parties to the
Credit Agreement referred to below
March 28, 1997
Page 4
counsel of each of the foregoing only in connection with this transaction,
and may not be relied upon by any other Person.
Very truly yours,
MAYER, BROWN & PLATT
By: /s/ BRIAN NEWHOUSE
--------------------------------------
Its Partner
PAJ:BEN:RNB
<PAGE>
SCHEDULE I
to Opinion of Mayer, Brown & Platt
LIST OF OTHER DOCUMENTS
1. Opinion of Brobeck, Phleger and Harrison (Section 6.1.5(a))
2. Opinion of Fraser & Beatty (Section 6.1.5(b))
3. Confirmation of Fibreboard Guaranty (Section 6.1.4(b))
4. Confirmation of Guaranty (Section 6.1.4(a) (i))
5. Guaranty (Section 6.1.4(a) (ii))
<PAGE>
EXHIBIT G
FORM OF SOLVENCY CERTIFICATE
SOLVENCY CERTIFICATE OF
VYTEC CORPORATION AND FIBREBOARD CORPORATION
TO: The parties to the Fourth Amended and Restated Credit Agreement, dated
as of March 28, 1997, among Fibreboard Corporation (the "REVOLVING
BORROWER"), Vytec Corporation, (the "TERM BORROWER"; together with the
Revolving Borrower, the "BORROWERS" and each individually, a
"BORROWER"), the various lenders which are or may become parties
thereto (the "LENDERS"), Bank of America National Trust and Savings
Association, as the administrative co-agent for the Lenders (in such
capacity, the "ADMINISTRATIVE AGENT"), and Nationsbank N.A., as the
documentation co-agent for such Lenders (in such capacity, the
"DOCUMENTATION AGENT").
This Certificate is delivered pursuant to Section 6.1.6 of the Fourth
Amended and Restated Credit Agreement, dated as of March 28, 1997, (as amended
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Revolving Borrower, the Term Borrower, the Lenders, the Administrative Agent and
the Documentation Agent. Terms defined in the Credit Agreement are, unless
otherwise defined herein or the context otherwise requires, used herein as
defined in the Credit Agreement. Section references herein are to the Credit
Agreement.
I hereby certify to the Administrative Agent, the Documentation Agent and
each Lender as follows:
1. I am the Vice President Finance of the Revolving Borrower and the Vice
President of the Term Borrower and, in such respective capacities, am the
principal accounting officer of the Revolving Borrower and the Term Borrower.
2. I have carefully reviewed the contents of this Certificate and
understand its meaning.
3. I have also participated in preparing the balance sheets and the
related statements of income, stockholders' equity and cash flows of the
Revolving Borrower described in Section 7.5 of the Credit Agreement and have
reviewed and am familiar with the balance sheets and the related statements of
income, stockholders' equity and cash flows of the Term Borrower described in
Section 7.5 of the Credit Agreement, each of which has been furnished to the
Administrative Agent, the Documentation
<PAGE>
Agent and each Lender for the purposes of or in connection with the Credit
Agreement.
4. In connection with the conclusions set forth below, I have made such
investigation and inquiries as I deem necessary and prudent therefor and
specifically have relied on historical information and other data supplied by
personnel directly responsible for the various operations involved.
Based upon the foregoing, and subject to the uncertainty and approximation
inherent in any projection and forecast, I have reached the conclusion that,
after giving effect to the transactions contemplated to occur on the Restatement
Effective Date and on the date of each Credit Extension under the Credit
Agreement,
(a) the net worth of each Borrower and each Obligor determined in
accordance with GAAP consistently applied will not be less than zero;
(b) the respective assets of each Borrower and each Obligor at fair
valuation, will exceed its respective liabilities, including contingent
liabilities;
(c) the respective capital of each Borrower and each Obligor will
not be unreasonably small to conduct its respective business; and
(d) neither of the Borrowers nor any other Obligor will have
incurred debts, or intends to incur debts, beyond its respective ability to
pay such debts as they mature.
For purposes of this Certificate, "debt" means any liability with respect
to (a) a right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, or (b) a right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
I understand you are relying on the truth and accuracy of the foregoing in
connection with your entering into the Credit Agreement and making Loans and
issuing and participating in Letters of Credit thereunder and that no one else
shall be entitled to rely on this Certificate other than your permitted
successors and assigns.
-2-
<PAGE>
I represent the foregoing information to be, in good faith and to the best
of my knowledge, true and accurate, and execute this Certificate as Vice
President Finance of the Revolving Borrower and Vice President of the Term
Borrower (and, in each case, solely in may capacity as such) and as of this 28th
day of March, 1997.
FIBREBOARD CORPORATION
By:
-------------------------------
Name Printed: Garold E. Swan
Title: Vice President Finance
VYTEC CORPORATION
By:
-------------------------------
Name Printed: Garold E. Swan
Title: Vice President
S-1
<PAGE>
EXHIBIT H
FORM OF
GUARANTY
THIS GUARANTY (this "GUARANTY"), dated as of March 28, 1997, jointly and
severally made by each of the corporations set forth under the caption
"GUARANTORS" on the signature pages hereto (each a "GUARANTOR"), in favor of
each Lender Party (as defined below).
RECITALS:
A. Pursuant to a Fourth Amended and Restated Credit Agreement, dated as of
March 28, 1997 (together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "CREDIT AGREEMENT"), among
Fibreboard Corporation, as the revolving borrower (the "REVOLVING BORROWER"),
Vytec Corporation, as the term borrower (the "TERM BORROWER"; and together with
the Revolving Borrower, the "BORROWERS"), the various commercial lending
institutions (individually a "LENDER" and collectively the "LENDERS") as are, or
may from time to time become, parties thereto, Bank of America National Trust
and Savings Association, as the administrative co-agent for such Lenders
(together with any successor(s) thereto in such capacity, the "ADMINISTRATIVE
AGENT"), and Nationsbank N.A., as the documentation co-agent for such Lenders
(together with any successor(s) thereto in such capacity, the "DOCUMENTATION
AGENT"), the Lenders have extended Commitments to make Revolving Loans to the
Revolving Borrower and to participate in Letters of Credit issued by an Issuer
for the account of the Revolving Borrower.
B. As a condition precedent to the making of the Revolving Loans and the
issuance of Letters of Credit under the Credit Agreement, each Guarantor is
required to execute and deliver this Guaranty.
C. Each Guarantor has duly authorized the execution, delivery and
performance by it of this Guaranty.
D. It is in the best interests of each Guarantor to execute this Guaranty
inasmuch as such Guarantor will derive substantial direct and indirect benefits
from the Revolving Loans made and Letters of Credit issued from time to time
pursuant to the Credit Agreement.
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce (i) the Lenders to make Loans
(including the Revolving Loans) to the Borrowers, (ii) an Issuer to issue
Letters of Credit for the
<PAGE>
account of the Revolving Borrower (including the Letters of Credit), and (iii)
the Lenders to participate in Letters of Credit issued by an Issuer for the
account of the Revolving Borrower, all pursuant to the Credit Agreement, each
Guarantor jointly and severally agrees, for the benefit of each Lender Party,
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"ADMINISTRATIVE AGENT" is defined in RECITAL A.
"CO-AGENT" means each of the Administrative Agent and the Documentation
Agent.
"CREDIT AGREEMENT" is defined in RECITAL A.
"DOCUMENTATION AGENT" is defined in RECITAL A.
"GUARANTOR" is defined in the PREAMBLE.
"GUARANTY" is defined in the PREAMBLE.
"LENDER" and "LENDERS" are defined in RECITAL A.
"LENDER PARTY" means, as the context may require, any Lender, any Issuer or
either Co-Agent and each of its respective successors, transferees and
assigns.
"REVOLVING BORROWER" is defined in RECITAL A.
SECTION 1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
SECTION 1.3. U.C.C. DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Guaranty, including its preamble and recitals, with such
meanings.
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ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. Each Guarantor hereby jointly and severally
absolutely, unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of each Borrower and each other Obligor
now or hereafter existing under the Credit Agreement, the Notes and each
other Loan Document to which either Borrower or such other Obligor is or
may become a party, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of Sections
502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. Section
502(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Lender Party and each
holder of a Note for any and all reasonable costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Lender Party or
such holder, as the case may be, in enforcing any rights under this
Guaranty;
PROVIDED, HOWEVER, that each Guarantor shall be jointly and severally liable
under this Guaranty for the maximum amount of such liability that can be hereby
incurred by such Guarantor without rendering this Guaranty, as it relates to
such Guarantor, void or voidable under Applicable Law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount. This
Guaranty constitutes a guaranty of payment when due and not of collection, and
each Guarantor specifically agrees that it shall not be necessary or required
that any Lender Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against either Borrower or any
other Obligor (or any other Person) before or as a condition to the obligations
of such Guarantor hereunder.
SECTION 2.2. ACCELERATION OF GUARANTY. Each Guarantor agrees that, in the
event of the dissolution or insolvency of either Borrower, or any other Obligor
or such Guarantor, or the inability or failure of either Borrower, any other
Obligor or such Guarantor to pay debts as they become due (subject to any
applicable grace periods), or an assignment by either Borrower, any other
Obligor or such Guarantor for the benefit of creditors, or the commencement of
any case or proceeding in respect of either Borrower, any other Obligor or such
Guarantor under any
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bankruptcy, insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of each Borrower and each other Obligor may
not then be due and payable, such Guarantor will pay to the Lenders forthwith
the full amount which would be payable hereunder by such Guarantor if all such
Obligations were then due and payable.
SECTION 2.3. GUARANTY ABSOLUTE, ETC. This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the Borrowers
and each other Obligor have been paid in full, all obligations of each Guarantor
hereunder shall have been paid in full and all Commitments shall have terminated
and all Letters of Credit have expired or been terminated. Each Guarantor
jointly and severally guarantees that the Obligations of the Borrowers and each
other Obligor will be paid strictly in accordance with the terms of the Credit
Agreement and each other Loan Document under which they arise, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Lender Party or any holder of
any Note with respect thereto. The joint and several liability of each
Guarantor under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of, and each Guarantor hereby waives any defense arising out of or
related to:
(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Note or any other Loan Document;
(b) all statutes of limitations asserted as a defense to any action
brought by the Administrative Agent or any other Lender Party against any
Guarantor;
(c) any disability or any other defense of the either Borrower or
any other Person with respect to the Obligations, whether consensual or
arising by operation of law or any bankruptcy, insolvency or debtor-relief
proceeding, or from any other cause;
(d) the failure of the Administrative Agent or any other Lender
Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right
or remedy against either Borrower, any other Obligor or any other
Person (including any other guarantor) under the provisions of the
Credit Agreement, any Note, any other Loan Document or otherwise, or
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(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of the either
Borrower or any other Obligor;
(e) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of either Borrower or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of either Borrower or any other Obligor;
(f) any reduction, limitation, impairment or termination of any
Obligations of the either Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Guarantor hereby waives
any right to or claim of) any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Obligations of either Borrower, any
other Obligor or otherwise;
(g) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit Agreement,
any Note or any other Loan Document;
(h) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by the Administrative
Agent or any other Lender Party or any holder of any Note securing any of
the Obligations of either Borrower or any other Obligor;
(i) all suretyship defenses and rights of every nature otherwise
available under California law and the laws of any other jurisdiction,
including without limitation all defenses arising under Sections 2787
through 2855, and Sections 2899 and 3433 of the California Civil Code and
any successor provisions of those Sections; and
(j) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, either
Borrower, any other Obligor, any surety or any guarantor.
SECTION 2.4. REINSTATEMENT, ETC. Each Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in
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whole or in part) of any of the Obligations is rescinded or must otherwise be
restored by any Lender Party or any holder of any Note, upon the insolvency,
bankruptcy or reorganization of either Borrower, any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 2.5. WAIVER, ETC. Each Guarantor hereby waives presentment,
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Obligations of either Borrower or any other Obligor and this Guaranty
and any requirement that either Co-Agent, any other Lender Party or any holder
of any Note protect, secure, perfect or insure any security interest or Lien, or
any property subject thereto, or exhaust any right or take any action against
either Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of either
Borrower or any other Obligor, as the case may be.
SECTION 2.6. SUBROGATION, ETC. At any time that a payment is made by any
Guarantor with respect to the Obligations, such Guarantor shall have a right of
contribution against each other Obligor and each other Obligor shall have an
obligation to indemnify such Guarantor in the maximum amount permitted by
Applicable Law, which right of contribution and indemnity shall be subject to
adjustment at the time of any subsequent payment with respect to the
Obligations; PROVIDED, HOWEVER, that the maximum aggregate liability of any
Guarantor shall not exceed the maximum amount of liability that such Guarantor
can incur without rendering such contribution and indemnity rights void or
voidable under Applicable Law relating to fraudulent conveyance or fraudulent
transfers, and not for any greater amount; PROVIDED, FURTHER, HOWEVER, that no
Guarantor will exercise any rights which it may acquire by reason of any payment
made hereunder, whether by way of rights of subrogation, reimbursement or
otherwise, until the prior payment, in full and in cash, of all Obligations of
the Borrowers and each other Obligor. Any amount paid to any Guarantor on
account of any payment made hereunder prior to the payment in full of all
Obligations of the Borrowers and each other Obligor shall be held in trust for
the benefit of the Lender Parties and each holder of a Note and shall
immediately be paid to the Administrative Agent and credited and applied against
the Obligations of the Borrowers and each other Obligor, whether matured or
unmatured, in accordance with the terms of the Credit Agreement; PROVIDED,
HOWEVER, that if
(a) any Guarantor has made payment to the Lender Parties and each
holder of a Note of all or any part of the Obligations of the Borrowers or
any other Obligor, and
(b) all Obligations of the Borrowers and each other Obligor have
been paid in full and all Commitments and
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Letters of Credit have expired or been permanently terminated,
at such Guarantor's request, the Administrative Agent, on behalf of the Lender
Parties and the holders of the Notes, will execute and deliver to such Guarantor
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Obligations of the Borrowers and each other Obligor resulting
from such payment by such Guarantor. In furtherance of the foregoing, for so
long as any Obligations, Letters of Credit or Commitments remain outstanding,
each Guarantor shall refrain from taking any action or commencing any proceeding
against either Borrower or any other Obligor (or its successors or assigns,
whether in connection with a bankruptcy proceeding or otherwise) to recover any
amounts in respect of payments made under this Guaranty to any Lender Party or
any holder of a Note. Each Guarantor hereby waives any benefit of, and any
right to participate in, any collateral now or hereafter held by any Lender
Party.
SECTION 2.7. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS OF NOTES,
ETC. This Guaranty shall:
(a) be binding upon each Guarantor, and its respective successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by each Co-Agent and
each other Lender Party.
Without limiting the generality of the foregoing CLAUSE (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Revolving Loan
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including this Guaranty) or otherwise,
subject, however, to any contrary provisions in such assignment or transfer, and
to the provisions of Section 11.11 of the Credit Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
SECTION 3.1.1. RELATIONSHIP OF PARTIES. (a) Such Guarantor and each
Borrower are distinct and separate entities operating as
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independent corporations; (b) such Guarantor has received copies of the
Credit Agreement and is familiar with and fully understands all of its terms
and conditions; (c) neither Co-Agent has made any representations or
warranties to such Guarantor regarding the creditworthiness of the Borrowers
or the prospects of repayment from sources other than the Borrowers; (d) this
Guaranty is executed at the request of the Borrowers; (e) such Guarantor has
established adequate means of obtaining from the Borrowers on a continuing
basis financial and other information pertaining to the business of the
Borrowers; (f) each of the Borrowers and such Guarantor is solvent, and (g)
such Guarantor assumes full responsibility for keeping fully informed with
respect to the business, operation, condition and assets of the Borrowers.
Such Guarantor hereby agrees that neither Co-Agent shall have any duty to
disclose or report to such Guarantor any information now or hereafter known
to such Co-Agent relating to the business, operation, condition and assets of
the Borrowers. Neither Co-Agent shall have any duty to inquire into the
authority or powers of either Borrower or any officer, employee or agent of
either Borrower with regard to any Obligations, and all Obligations made or
created in good faith in reliance upon the professed exercise of any such
authority or powers shall be guaranteed hereunder.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. OBLIGATIONS UNDER CREDIT AGREEMENT. Each Guarantor jointly
and severally covenants and agrees that, so long as any portion of the
Obligations shall remain unpaid, all Letters of Credit have not expired or been
terminated or any Lender shall have any outstanding Commitment, such Guarantor
will comply with and perform its obligations under the Credit Agreement to the
extent applicable to such Guarantor.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. LOAN DOCUMENT. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 5.2. DEED OF TRUST ON REAL PROPERTY; ADDITIONAL WAIVERS. (a) Each
Guarantor authorizes the Administrative Agent, with the consent of the Required
Lenders, without notice
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or demand and without affecting the liability of such Guarantor hereunder, to
release and reconvey (with or without the receipt of any consideration) any
lien against any or all real or personal property security for the
Obligations, to foreclose any or all deeds of trust, mortgages, security
agreements or other instruments or agreements by judicial or nonjudicial
sale, and to exercise any other remedy against the Borrowers or any other
Obligor, any security or any other guarantor, all without affecting the
liability of such Guarantor hereunder. Each Guarantor acknowledges that,
pursuant to Section 580d of the California Code of Civil Procedure, the
exercise by the Administrative Agent or any other Lender Party of certain
remedies, including the remedy of non-judicial foreclosure, against any
collateral security for the Obligations would make the Borrowers immune from
a deficiency judgment, thereby preventing any recovery that such Guarantor
might have obtained from the Borrowers pursuant to its rights of subrogation
and acknowledges further that, in the absence of this SECTION 5.2, such a
loss of such Guarantor's rights may entitle such Guarantor to assert a
defense to this Guaranty based on Section 580d of the California Code of
Civil Procedure as interpreted in UNION BANK v. GRADSKY, 265 Cal. App. 2d 40
(1968) against a claim by the Administrative Agent or any other Lender Party
against such Guarantor in respect of such deficiency. Each Guarantor
expressly waives any defense to the recovery by the Administrative Agent or
any other Lender Party from such Guarantor of any deficiency after a
nonjudicial sale, including without limitation any defense arising as a
result of any election of remedies by the Administrative Agent or any other
Lender Party which limits or destroys such Guarantor's subrogation rights or
such Guarantor's right to proceed against the Borrowers for reimbursement
(including without limitation any election by the Administrative Agent or any
other Lender Party to exercise its rights under the power of sale in any
mortgage or deed of trust and any consequential loss by such Guarantor of the
right to recover any deficiency from the Borrowers as described above).
Each Guarantor waives any defenses or benefits that may be derived from
California Code of Civil Procedure Sections 580a, 580b, 580d or 726, or
Section 2848 of the California Civil Code or comparable provisions of the
laws of the State of California or any other jurisdiction, and all other
suretyship defenses it would otherwise have under California law or the laws
of any other jurisdiction and acknowledges and agrees that the Administrative
Agent and each other Lender Party are relying on this waiver in creating the
Obligations, and that this waiver is a material part of the consideration
which the Administrative Agent and each other Lender Party are receiving for
creating the Obligations. Each Guarantor waives any right to receive notice
of any judicial or nonjudicial sale or foreclosure of any real property, and
the failure of such Guarantor to receive such
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notice shall not impair or affect such Guarantor's liability hereunder.
(b) Each Guarantor waives any rights and defenses available to such
Guarantor by reason of Sections 2787 to 2855, inclusive, of the California Civil
Code including, without limitation, (1) any defenses such Guarantor may have to
its obligations under this Guaranty by reason of an election of remedies by any
Lender Party and (2) any rights or defenses such Guarantor may have by reason of
protection afforded to the Borrowers with respect to any of the Obligations of
the Borrowers pursuant to the antideficiency or other laws of California
limiting or discharging any of the Obligations of the Borrowers, including,
without limitation, Sections 580a, 580d, or 726 of the California Code of Civil
Procedure.
(c) Each Guarantor waives all rights and defenses arising out of an
election of remedies by any Lender Party, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed such Guarantor's rights of subrogation and
reimbursement against the Borrowers by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.
(d) No provision or waiver of this Guaranty shall be construed as
limiting the generality of any other waiver contained in this Guaranty.
SECTION 5.3. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS; ASSIGNMENT.
In addition to, and not in limitation of, SECTION 2.7, this Guaranty shall be
binding upon each Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Lender Party and each
holder of a Note and their respective successors, transferees and assigns (to
the full extent provided pursuant to SECTION 2.7); PROVIDED, HOWEVER, that no
Guarantor may assign any of its obligations hereunder without the prior written
consent of the Co-Agents and each other Lender Party.
SECTION 5.4. AMENDMENTS. ETC. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by any Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by each
Co-Agent and the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 5.5. ADDRESSES FOR NOTICES TO EACH GUARANTOR. All notices and
other communications hereunder to each Guarantor shall be in writing (including
by Telex or facsimile) and mailed or telegraphed or delivered to it, addressed
to it at the address
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set forth below its signature hereto or at such other address as shall be
designated by such Guarantor in a written notice to the Administrative Agent
at the address specified in the Credit Agreement complying as to delivery
with the terms of this Section. Any notice, if mailed and properly addressed
with postage prepaid or if properly addressed and sent by pre-paid courier
service, shall be deemed given when received; any notice, if transmitted by
Telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of Telexes).
SECTION 5.6. NO WAIVER; REMEDIES. In addition to, and not in limitation
of, SECTION 2.3 and SECTION 2.5, no failure on the part of any Lender Party or
any holder of a Note to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 5.7. SECTION CAPTIONS. Section captions used in this
Guaranty are for convenience of reference only, and shall not affect the
construction of this Guaranty.
SECTION 5.8. SETOFF. In addition to, and not in limitation of, any
rights of any Lender Party or any holder of a Note under applicable law, each
Lender Party and each such holder shall, with the consent of the Required
Lenders, upon the occurrence of any Default described in any of CLAUSES (a)
through (d) of Section 9.1.9 of the Credit Agreement or, with the consent of the
Required Lenders, upon the occurrence of any Event of Default, have the right to
appropriate and apply to the payment of the obligations of each Guarantor owing
to it hereunder, whether or not then due, and each Guarantor hereby grants to
each Lender Party and each such holder a continuing security interest in, any
and all balances, credits, deposits, accounts or moneys of such Guarantor then
or thereafter maintained with such Lender Party or such holder and any and all
property of every kind or description of or in the name of such Guarantor now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, such Lender Party, such holder or any agent or bailee for
such Lender Party or such holder; PROVIDED, HOWEVER, that any such appropriation
and application shall be subject to the provisions of Section 5.8 of the Credit
Agreement.
SECTION 5.9. SEVERABILITY. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the
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remainder of such provision or the remaining provisions of this Guaranty.
SECTION 5.10. GOVERNING LAW, ENTIRE AGREEMENT. ETC. THIS GUARANTY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF CALIFORNIA. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 5.11. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF THE LENDER PARTIES OR ANY GUARANTOR SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF CALIFORNIA OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT,
AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE
SUCH PROPERTY MAY BE FOUND. EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITh SUCH LITIGATION. EACH
GUARANTOR FURThER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
CALIFORNIA. EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH
GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 5.12. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR SUCH
GUARANTOR. EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION
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AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE CO-AGENTS AND EACH
OTHER LENDER PARTY ENTERING INTO THE CREDIT AGREEMENT.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GUARANTORS
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STONE PRODUCTS CORPORATION
By:
-----------------------------------
Title:
Address: 2121 North California Blvd.
Suite 560
Walnut Creek, California 94596
Attention: Garold E. Swan
Telecopy: (510) 274-0714
S-1
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EXHIBIT I-1
FORM OF
CONFIRMATION OF GUARANTY
Dated as of March 28, 1997
To: Bank of America National Trust and Savings Association, individually and as
administrative co-agent (the "Administrative Agent"), Nationsbank, N.A., as
documentation co-agent (the "Documentation Agent") and the other financial
institutions party to the Restated Agreement referred to below (the
"Lenders")
Please refer to the following:
(a) the Guaranty, dated as of February 6, 1996 (each, as
amended or otherwise modified prior to the date hereof, the "Guaranty"), by
each of the undersigned (each, a "Subsidiary") in favor or each Lender
Party (as defined therein);
(b) the Fourth Amended and Restated Credit Agreement, dated
as of March 28, 1997 (the "Restated Credit Agreement"; capitalized terms
not otherwise defined herein are used as defined in the Restated Credit
Agreement) among Fibreboard Corporation, as the revolving borrower, Vytec
Corporation, as the term borrower, the Lenders (as defined in the Restated
Agreement), Bank of America National Trust and Savings Association, as
administrative co-agent, and Nationsbank N.A., as documentation co-agent.
Each Subsidiary hereby confirms to the Administrative Agent and the Lenders
that, after giving effect to the Restated Credit Agreement and the transactions
contemplated thereby and by the other Loan Documents (including, without
limitation, the Fibreboard Guaranty), the Guaranty continues in full force and
effect and is the legal, valid and binding obligation of such Subsidiary,
enforceable against such Subsidiary in accordance with its terms.
* * * * *
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VYTEC SALES CORPORATION
By:
-------------------------------
Title:
PABCO METALS CORPORATION
By:
-------------------------------
Title:
NORANDEX INC.
By:
-------------------------------
Title:
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EXHIBIT I-2
FORM OF
CONFIRMATION OF FIBREBOARD GUARANTY
Dated as of March 28, 1997
To: Bank of America National Trust and Savings Association, individually and as
administrative co-agent (the "Administrative Agent"), Nationsbank, N.A., as
documentation co-agent (the "Documentation Agent") and the other financial
institutions party to the Restated Agreement referred to below (the
"Lenders")
Please refer to the following:
(a) the Fibreboard Guaranty, dated as of February 6, 1996
(each, as amended or otherwise modified prior to the date hereof, the
"Fibreboard Guaranty"), by Fibreboard Corporation, a Delaware corporation
("Fibreboard"), in favor or each Lender Party (as defined therein);
(b) the Fourth Amended and Restated Credit Agreement, dated
as of March 28, 1997 (the "Restated Credit Agreement"; capitalized terms
not otherwise defined herein are used as defined in the Restated Credit
Agreement) among Fibreboard, as the revolving borrower, Vytec Corporation,
as the term borrower, the Lenders (as defined in the Restated Agreement),
Bank of America National Trust and Savings Association, as administrative
co-agent, and Nationsbank N.A., as documentation co-agent.
Fibreboard hereby confirms to the Administrative Agent and the Lenders
that, after giving effect to the Restated Credit Agreement and the transactions
contemplated thereby and by the other Loan Documents (including, without
limitation, the Guaranty and the Confirmation of Guaranty), the Fibreboard
Guaranty continues in full force and effect and is the legal, valid and binding
obligation of Fibreboard, enforceable against Fibreboard in accordance with its
terms.
FIBREBOARD CORPORATION
By:
-------------------------------
Title:
<PAGE>
EXHIBIT J
List of Settlement Agreements
1. Global Settlement Agreement dated as of August 27, 1993 among Fibreboard
Corporation ("Fibreboard"), Continental Casualty Company ("Continental"),
CNA Casualty Company of California ("CNA"), Columbia Casualty Company
("Columbia"), Pacific Indemnity Company ("Pacific") and the Settlement
Class, together with Exhibits A through E thereto, as amended by certain
amendments entered into as of December __ 1994, February 6, 1995 and May
15, 1995.
2. Insurance Settlement Agreement dated October 12, 1993 among Fibreboard,
Continental, CNA Casualty Company of California, Columbia Casualty Company
and Pacific and certain amendments or supplements thereto copies of which
have been approved by the Administrative Agent and the Lenders.
3. Agreement dated April 9, 1993 between Fibreboard and Continental.
4. Agreement dated March 27, 1992 between Fibreboard and Pacific Indemnity
Company.
5. Rescission of Insurance Policies dated March 27, 1992 between Fibreboard
and Pacific.
6. Agreement of Compromise, Settlement and Release dated May 27, 1987 between
Fibreboard and the Home Insurance Company.
7. Settlement Agreement dated January 1, 1993 between Fibreboard and
Continental.
8. Settlement Agreement dated January 1, 1993 among Fibreboard, Fireman's Fund
Insurance Company, Insurance Company of North America and Royal Insurance
Company.
9. Settlement Agreement dated January 1, 1993 among Fibreboard, American Home
Assurance Company, Granite State Insurance Company, Insurance Company of
Pennsylvania, Lexington Insurance Company, and New Hampshire Insurance
Company.
10. Agreement, dated as of March [__], 1994, by and among the representatives
of the Settlement Class, the Revolving Borrower, Continental, CNA Casualty,
Columbia, and Pacific.
11. Stipulation of Settlement entered into as of December 5, 1994, by and among
the AHEARN Health Claimant Class,
<PAGE>
Bethlehem Steel Corporation, on behalf of itself and the members of the
Longshore Defendant Class, and the Director, Office of Workers'
Compensation Programs, U.S. Department of Labor.
12. Special Reserve Agreement entered into as of March 8, 1995, among the
Health Claimant Class Representatives, Owens-Illinois, Inc. as Third-Party
Class Representative, and Fibreboard.
-2-
<PAGE>
EXHIBIT K
REVOLVING BORROWER'S
CASH MANAGEMENT POLICY
FIBREBOARD CORPORATION
INVESTMENT POLICY
The Chief Financial Officer is authorized to invest or direct the Cash Manager
to invest surplus funds of the Corporation. Such investments will be made in
approved money market instruments having a maturity of one year or less, under
the following guidelines.
I. INVESTMENT OBJECTIVE
A. To assure safety of principal
B. To red liquidity to meet our projected cash needs
C. To realize the best available yield, while assuming a minimum of risk
II. APPROVED INVESTMENTS
A. United States Treasury securities or any obligation which are backed
by "the full faith and credit of the United States Government".
B. Federal Agency securities.
C. Financial institutions with a Moody's credit rating of at least A-1
for long term or P-1 for short term deposits.
1 Certificates of Deposit
2. Time Deposits
3. Bankers Acceptance
4. Loan Participations
5. Letter of Credit backed instruments
D. Commercial Paper limited to at least A-1 or P-1.
E. Money Market Preferred Stock or Notes (A rated) through
recognized major money market dealers.
F. Repurchase Agreements with recognized major money market
dealers or banks, against securities which meet the
qualifications stated above and having a market value of at
least 100% of the amount of the repurchase agreement.
G. Other investments plus those covered above with A quality or
above may consist of up to 10% of total invested surplus funds.
<PAGE>
III. INVESTMENT RESTRICTIONS
A. Limit of $80 million in any financial institution with an A rating or
better.
B. Limit of $25 million in any other of the financial institutions in II.
C. Limit to be exceeded only upon approval of CFO or President.
IV. INVESTMENT SAFEKEEPING
A. For invests with a maturity of over five days, instruments will be
placed in a major money center bank, preferable one of our credit line
banks, safekeeping account in Fibreboard's name.
B. For investments with a maturity of five days or under, including open
repos, MAY be held in safekeeping by the investment institution or
delivered as above.
2
<PAGE>
EXHIBIT L
INVITATION FOR COMPETITIVE BIDS
VIA FACSIMILE
To the Lenders Listed on ANNEX A attached hereto:
Ladies and Gentlemen:
Reference is made to that certain Fourth Amended and Restated Credit
Agreement dated as of March 28, 1997 (as amended from time to time, the "CREDIT
AGREEMENT"), among Fibreboard Corporation (the "BID BORROWER"), Vytec
Corporation, the Lenders party thereto, and Bank of America National Trust and
Savings Association, as Administrative Co-Agent for the Lenders (the
"ADMINISTRATIVE AGENT") and Nationsbank N.A., as Documentation Co-Agent.
Capitalized terms used herein have the meanings specified in the Credit
Agreement.
Pursuant to subsection 2.6(b) of the Credit Agreement, you are hereby
invited to submit offers to make Bid Loans to the Bid Borrower based on the
following specifications:
1. Date of Bid Borrowing: __________________ , ________;
2. Aggregate amount of Bid Borrowing:
$_____________________ ;
3. The Bid Loan shall be [EURODOLLAR BID LOANS] [ABSOLUTE RATE BID
LOANS]; and
4. Interest Period[S]: ____________________ ,
[________________] and [________________].
All Competitive Bids must be in the form of EXHIBIT N to the Credit
Agreement and must be received by the Administrative Agent no later than 6:30
a.m. (San Francisco time) on [THREE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF
BORROWING IN THE CASE OF A EURODOLLAR AUCTION OR 6:30 A.M. (SAN FRANCISCO TIME)
ON THE PROPOSED DATED OF BORROWING IN THE CASE OF AN ABSOLUTE RATE AUCTION.]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:
-------------------------------
Title:
----------------------------
<PAGE>
ANNEX A
TO EXHIBIT L
List of Lenders
Bank of America National Trust
and Savings Association, as a Lender
Facsimile: (415) 622-____
[LENDER]
Facsimile: (___) ___-____
(LENDER]
Facsimile: (___) ___-____
[LENDER]
Facsimile: (___) ___-____
[LENDER]
Facsimile: (___) ___-____
<PAGE>
FORM OF EXHIBIT M
COMPETITIVE BID REQUEST
___________________ , ______
Bank of America National Trust
and Savings Association,
as Administrative Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Global Agency #5596
Ladies and Gentlemen:
Reference is made to that certain Fourth Amended and Restated Credit
Agreement dated as of March 28, 1997 (as amended from time to time, the "CREDIT
AGREEMENT"), among Fibreboard Corporation (the "BID BORROWER"), Vytec
Corporation, the Lenders party thereto, and Bank of America National Trust and
Savings Association, as Administrative Co-Agent for the Lenders (the
"ADMINISTRATIVE AGENT") and Nationsbank, N.A., as Documentation Co-Agent.
Capitalized terms used herein have the meanings specified in the Credit
Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section 2.6 of
the Credit Agreement as follows:
(i) The Business Day of the proposed Bid Borrowing is ________________ ,
_________ .
(ii) The aggregate amount of the proposed Bid Borrowing is $ ___________ .
(iii) The proposed Bid Borrowing to be made pursuant to Section 2.6 shall
be comprised of [EURODOLLAR] [ABSOLUTE RATE] Bid Loans.
(iv) The Interest Period[S] for the Bid Loans comprised in the Bid
Borrowing shall be ________________ , [________________] and [________________].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Bid Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Borrowers contained
in Article VII of the Credit Agreement
<PAGE>
are true and correct as though made on and as of such date (except to the
extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date);
(b) no Default or Event of Default has occurred and is continuing,
or would result from such proposed Bid Borrowing; and
(c) the proposed Bid Borrowing will not cause the aggregate
principal amount of all outstanding Loans PLUS the Letter of Credit
Availability PLUS Letter of Credit Outstandings to exceed the combined
Revolving Commitment Amount of the Lenders.
FIBREBOARD CORPORATION
By:
-------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
-2-
<PAGE>
EXHIBIT N
FORM OF COMPETITIVE BID
_____________________, ______
Bank of America National Trust
and Savings Association,
as Administrative Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Global Agency #5596
Ladies and Gentlemen:
Reference is made to that certain Fourth Amended and Restated Credit
Agreement dated as of March 28, 1997 (as amended from time to time, the "CREDIT
AGREEMENT"), among Fibreboard Corporation (the "BID BORROWER"), Vytec
Corporation, the Lenders party thereto, and Bank of America National Trust and
Savings Association, as Administrative Co-Agent for the Lenders (the
"ADMINISTRATIVE AGENT") and Nationsbank N.A., as Documentation Co-Agent.
Capitalized terms used herein have the meanings (if any) specified in the Credit
Agreement.
In response to the Competitive Bid Request of the Bid Borrower dated _____
___________ , _____ and in accordance with subsection 2.6(c)(ii) of the Credit
Agreement, the undersigned Lender offers to make [a] Bid Loan[S] thereunder in
the following principal amount[s] at the following interest rates for the
following Interest Period[S]:
Date of Bid Borrowing: _________________ , _____
Aggregate Maximum Bid Amount: $__________________
[ABSOLUTE RATE] [EURODOLLAR BID MARGIN (+/-)]: _______%
Duration of Interest Period ______________
[NAME OF LENDER]
By:
-------------------------------
Title:
----------------------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FIBREBOARD'S
AUDITED FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31, 1996 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 22,970
<SECURITIES> 0
<RECEIVABLES> 72,615
<ALLOWANCES> 3,398
<INVENTORY> 73,821
<CURRENT-ASSETS> 182,979
<PP&E> 118,779
<DEPRECIATION> 34,817
<TOTAL-ASSETS> 590,465
<CURRENT-LIABILITIES> 54,847
<BONDS> 0
0
0
<COMMON> 87
<OTHER-SE> 290,687
<TOTAL-LIABILITY-AND-EQUITY> 590,465
<SALES> 115,929
<TOTAL-REVENUES> 115,929
<CGS> 81,219
<TOTAL-COSTS> 81,219
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 617
<INTEREST-EXPENSE> 501
<INCOME-PRETAX> 2,118
<INCOME-TAX> 879
<INCOME-CONTINUING> 1,239
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,239
<EPS-PRIMARY> 0.14
<EPS-DILUTED> 0
</TABLE>
