UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ............... to ...............
Commission File Number 1-1228
Stone & Webster, Incorporated
(Exact name of registrant as specified in its charter)
Delaware 13-5416910
(State of other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
245 Summer Street, Boston, MA 02210
(Address of Principal Executive Offices) (Zip Code)
(617) 589-5111
(Registrant's telephone number, including area code)
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 .
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock: 13,065,297 shares as of October 31, 1999.
<PAGE>
Stone & Webster, Incorporated and Subsidiaries
Form 10-Q
Index
Page No.
--------
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Statements of Operations (Unaudited):
Three and Nine Months Ended September 30, 1999 and
September 30, 1998........................................ 3
Consolidated Balance Sheets (Unaudited):
September 30, 1999 and December 31, 1998................... 4
Condensed Consolidated Statements of Cash Flows
(Unaudited):
Nine Months Ended September 30, 1999 and September 30,
1998..................................................... 5
Notes to Condensed Consolidated Financial Statements
(Unaudited)................................................ 6-10
Item 2. Management's Discussion and Analysis of Results of
Operations and Financial Condition..................... 11-16
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K....................... 17
SIGNATURES.............................................................. 18
<PAGE>
PART I. Financial Information
Item 1. Financial Statements
Stone & Webster, Incorporated and Subsidiaries
Consolidated Statements of Operations (Unaudited)
(In thousands, except per share amounts)
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
Revenue $286,071 $343,040 $839,122 $939,524
Cost of revenue 279,054 324,557 862,510 881,096
-------- -------- -------- --------
Gross profit (loss) 7,017 18,483 (23,388) 58,428
General and administrative
expenses 13,664 16,182 47,303 47,868
-------- -------- -------- --------
Operating income (loss) (6,647) 2,301 (70,691) 10,560
Other income (expense):
Interest income 503 708 1,586 2,208
Interest expense (2,714 (1,078) (6,629) (2,086)
-------- -------- -------- --------
Total other income (expense), net (2,211) (370) (5,043) 122
Income (loss) from continuing
operations before provision
for taxes (8,858) 1,931 (75,734) 10,682
Income tax (benefit) provision - 665 (10,000) 3,779
-------- -------- -------- --------
Income (loss) from continuing
operations (8,858) 1,266 (65,734) 6,903
Income from discontinued
operation, net of tax 2,004 902 6,401 3,529
-------- -------- -------- --------
Net income (loss) $ (6,854) $ 2,168 $(59,333) $ 10,432
======== ======== ======== ========
Per share amounts:
- ------------------
Basic and diluted earnings
(loss) per share
Continuing operations $(0.67) $0.10 $(5.03) $0.54
Discontinued operations 0.15 0.07 0.49 0.27
------ ----- ------ -----
Total earnings (loss)
per share $(0.52) $0.17 $(4.54) $0.81
====== ===== ====== =====
Dividends declared per share $ 0.15 $0.15 $ 0.45 $0.45
Weighted-average number of
shares outstanding:
Basic 13,064 12,912 13,060 12,835
====== ====== ====== ======
Diluted 13,064 12,957 13,060 12,932
====== ====== ====== ======
See accompanying notes to condensed consolidated financial statements.
<PAGE>
Stone & Webster, Incorporated and Subsidiaries
Consolidated Balance Sheets (Unaudited)
(Dollars in thousands, except per share amounts)
September 30, December 31,
1999 1998
---- ----
Assets
Current assets:
Cash and cash equivalents $ 35,114 $ 45,492
Accounts receivable, principally trade, net 264,310 276,235
Costs and revenues recognized in excess of
billings 100,033 49,302
Deferred income taxes 21,560 20,338
Other 1,673 638
-------- --------
Total current assets 422,690 392,005
Assets held for sale 6,744 6,744
Fixed assets, net 217,344 219,157
Domestic prepaid pension cost 166,847 155,703
Note receivable - 15,150
Other assets 59,040 45,923
-------- --------
Total assets $872,665 $834,682
======== ========
Liabilities and Shareholders' Equity
Current liabilities:
Bank loans $129,671 $106,350
Current portion of long-term debt 2,261 2,175
Accounts payable, principally trade 138,921 96,134
Billings in excess of costs and revenues
recognized 233,013 176,692
Accrued liabilities 79,214 80,036
Accrued taxes 7,009 12,034
-------- --------
Total current liabilities 590,089 473,421
Long-term debt 19,922 22,228
Deferred income taxes 21,560 33,030
Other liabilities 14,722 14,427
Shareholders' equity:
Preferred stock, no par value; authorized
2,000,000 shares; none issued - -
Common stock, $1 par value; authorized
40,000,000 shares; 17,731,488 shares issued
including shares held in treasury 17,731 17,731
Capital in excess of par value of common stock 54,663 54,625
Retained earnings 302,210 367,358
Accumulated other comprehensive income (11,726) (9,707)
Less: Common stock held in treasury, at cost
(4,666,891 and 4,692,933 shares) 121,352 122,030
Employee stock ownership and restricted
stock plans 15,154 16,401
Total shareholders' equity 226,372 291,576
-------- --------
Total liabilities and shareholders' equity $872,665 $834,682
======== ========
See accompanying notes to condensed consolidated financial statements
<PAGE>
Stone & Webster, Incorporated and Subsidiaries
Condensed Consolidated Statements of Cash Flows (Unaudited)
(In thousands)
Nine Months
Ended September 30,
1999 1998
---- ----
Cash Flows from Operating Activities:
Net income (loss) $(59,333) $10,432
Adjustments to reconcile net income (loss) to
net cash used for operating activities:
Depreciation and amortization 17,038 11,770
Amortization of net cost of stock plans 1,279 1,286
Gain from asset divestiture - (3,066)
Deferred income taxes (12,692) (828)
Domestic prepaid pension cost (11,144) (15,508)
Changes in operating assets and liabilities 38,981 (91,260)
-------- -------
Net cash used for operating activities (25,871) (87,174)
-------- -------
Cash Flows from Investing Activities:
Purchases of fixed assets (15,225) (24,831)
Proceeds from note receivable 15,150 -
Proceeds from maturities of U.S. Government
securities - 31,909
Proceeds from asset divestiture - 13,546
-------- -------
Net cash (used for) provided by investing
activities (75) 20,624
======== =======
Cash Flows from Financing Activities:
Repayments of long-term debt (2,834) (1,236)
Acquisition of long-term debt 614 1,627
Increase in bank loans 23,321 25,850
Issuance of common stock from treasury - 4,345
Payments received from Employee Stock Ownership
Trust 1,835 1,835
Payments to Employee Stock Ownership Trust (1,489) (1,342)
Dividends paid (5,879) (5,776)
-------- -------
Net cash provided by financing activities 15,568 25,303
-------- -------
Net decrease in cash and cash equivalents (10,378) (41,247)
Cash and cash equivalents at beginning of period 45,492 75,030
-------- -------
Cash and cash equivalents at end of period $ 35,114 $33,783
======== =======
See accompanying notes to condensed consolidated financial statements.
<PAGE>
Stone & Webster, Incorporated and Subsidiaries
Notes to Condensed Consolidated Financial Statements (Unaudited)
(A) The accompanying unaudited condensed consolidated financial statements of
Stone & Webster, Incorporated and Subsidiaries (the "Company") have been
prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and notes required by generally accepted accounting principles
for complete financial statements. The December 31, 1998 consolidated
balance sheet data was derived from audited financial statements but does
not include all disclosures required by generally accepted accounting
principles. In the opinion of management, all adjustments (consisting of
normal recurring adjustments) considered necessary for a fair presentation
have been included. Operating results for the quarter ended September 30,
1999 are not necessarily indicative of the results that may be expected for
the fiscal year ending December 31, 1999 or for any other future period.
For further information, refer to the consolidated financial statements and
notes included in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.
The preparation of condensed consolidated financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the amounts
reported in the consolidated financial statements and accompanying notes.
Actual results could differ from those estimates.
(B) Fixed assets, net are stated at cost less accumulated depreciation of
$152.9 million at September 30, 1999 and $190.9 million at December 31,
1998.
(C) On October 27, 1999, the Company announced its intention to sell the Nordic
Refrigerated Services business unit (cold storage segment). The Company is
seeking a buyer and has retained outside consultants to assist with this
sale. Accordingly, the results of the Nordic Refrigerated Services business
unit have been classified as a discontinued operation and prior periods
have been reclassified. The Company does not anticipate a loss on the sale
of this segment and accordingly, no loss provision has been recorded. The
continuing operations of the Company are the Engineering, Construction and
Consulting business.
Revenue and income from discontinued operation are as follows:
Three Months Ended Nine Months Ended
September 30, September 30,
(in thousands) 1999 1998 1999 1998
---- ---- ---- ----
Revenue $11,734 $7,403 $35,091 $21,880
Operating income 2,004 1,580 6,401 6,160
Income tax expense - 678 - 2,631
Income from discounted operation 2,004 902 6,401 3,529
Net assets from discontinued operation are as follows:
September 30, December 31,
(in thousands) 1999 1998
---- ----
Current assets $ 12,000 $ 9,897
Property plant and equipment, net 110,981 114,795
Other assets 2,677 2,165
Current liabilities (3,962) (8,487)
Deferred taxes (4,176) (4,680)
-------- --------
Net assets of discontinued operation $117,520 $113,690
======== ========
(D) Basic earnings per share for the nine months ended September 30, 1999 and
1998 were computed based on the weighted-average number of common shares
outstanding during the period of 13,059,878 and 12,835,460, respectively.
Diluted earnings per share for the nine months ended September 30, 1999 and
1998 were computed based on the weighted-average common and dilutive
potential shares outstanding during the period of 13,062,452 and
12,931,656, respectively. The difference between the basic and the dilutive
shares outstanding represents the potential dilution from the exercise of
stock options during the period assuming the application of the treasury
stock method. Since the Company incurred a loss for the three- and
nine-month periods ended September 30, 1999 and the dilutive potential
shares would be antidilutive they are not included in the calculation of
earnings per share as prescribed by FAS 128.
(E) The Company had a valuation allowance of $30.2 million at September 30,
1999 and $9.1 million at December 31, 1998 for the deferred tax assets
related to net operating loss carryforwards. The valuation allowance at
September 30, 1999 comprises $5.0 million relating to federal net operating
loss carryforwards, $9.3 million relating to state net operating loss
carryforwards and $15.9 million relating to the loss carryforwards of
international subsidiaries. During the first quarter of 1999, the annual
tax benefit was recognized to the extent of the net deferred tax liability;
therefore, no provision for taxes was required for the third quarter. In
addition, a valuation allowance was established against operating loss
carryforwards in excess of the net deferred tax liability position.
(F) Pension related items, which reduced operating costs, were $3.3 million and
$10.1 million for the quarter and nine months ended September 30, 1999
compared to $5.1 million and $15.4 million for the same periods in the
prior year. These items increased net income by $3.3 million, or $0.25 per
share and $6.1 million or $0.46 per share for the quarter and nine months
ended September 30, 1999, compared with $3.1 million, or $0.23 per share
and $9.2 million or $0.71 per share for the same periods in 1998. Pension
related items include a net pension credit for the Company's domestic
subsidiaries and a net pension cost for its foreign subsidiaries. The
pension credit is the result of a plan that is funded in excess of the
projected benefit obligation, which is primarily due to favorable asset
performance.
(G) Under the 1995 Stock Option Plan, as of September 30, 1999, nonqualified
options for 550,125 shares were outstanding and options for 434,625 shares
were exercisable. For the nine months ended September 30, 1999, no options
were exercised, 50,625 options were canceled and 29,000 options were
accelerated.
Under the Stone & Webster, Incorporated Long-Term Incentive Compensation
Plan (the "1998 Plan") for the nine months ended September 30, 1999,
nonqualified and incentive stock options for 457,000 shares of common stock
were granted to employees and nonemployee directors at a weighted-average
per share option exercise price of $28.45. The options granted will become
exercisable at times ranging from February 1999 to August 2003. As of
September 30, 1999, options for 668,750 shares were outstanding and 227,834
options were exercisable. For the nine months ended September 30, 1999, no
options were exercised, 28,250 options were canceled, and 33,000 options
were accelerated. Under the 1998 Plan for the nine months ended September
30, 1999, 22,792 shares of restricted stock were awarded at a per share
weighted-average grant price of $28.77 with vesting of shares occurring in
part on the effective date and the balance in thirds or fifths on the
anniversaries of the dates of grant. No shares have been forfeited for the
quarter or for the nine months ended September 30, 1999.
The Employee Retirement Plan of Stone & Webster, Incorporated and
Participating Subsidiaries (the "Retirement Plan") and the Trust Agreement
under the Retirement Plan have been amended, effective July 1, 1999, to
permit the investment of a portion of the assets of the Retirement Plan in
common stock or other qualifying securities issued by the Company, provided
that the aggregate maximum number of such securities acquired shall be less
than five percent (5%) of such common stock or other securities, as the
case may be, then outstanding, and provided that such investment be in
compliance with the Employee Retirement Income Security Act of 1974, as
amended, and other applicable laws. The Board of Directors has directed
that such investment be made in an orderly manner from time to time in
accordance with investment guidelines and objectives established by the
Board.
(H) During the third quarter of 1999, the Company finalized negotiations on a
$230.0 million collateralized line of credit with a group of banks, which
provided up to $130 million in direct borrowing for operating funds and
$100 million in letters of credit. Upon closing the new facility, the
Company repaid the bank loans and certain long- term debt that was
outstanding as of the end of the second quarter. As of September 30, 1999,
$129.7 million of direct borrowings and $84.2 million of letters of credit
were outstanding under this new agreement. As of September 30, 1998, the
Company had three separate domestic line of credit agreements available
totaling $110.0 million. The Company also had a domestic line of credit
through a subsidiary in the amount of $2.0 million under which it had
borrowed $0.8 million. Borrowings under other lines of credit amounted to
$25.1 million as of September 30, 1998.
Because of the losses in the third quarter, the Company requested waivers
from its bank group regarding certain covenants in its principal credit
agreement for which it is not in compliance, and the banks have waived
those covenants until November 29, 1999. The credit agreement matures at
the end of January 2000.
(I) Comprehensive income (loss) was $(9.3) million and $2.3 million for the
quarters ended September 30, 1999 and 1998, respectively. Other
comprehensive income (loss) consists of translation adjustments of $(2.4)
million and $0.1 million for the quarters ended September 30, 1999 and
1998, respectively. For the nine months ended September 30, 1999 and 1998
comprehensive income (loss) was $(61.4) million and $6.9 million,
respectively. Other comprehensive income (loss) consists of translation
adjustments of $(2.0) million and $(3.5) million for the nine months ended
September 30, 1999 and 1998, respectively.
(J) During the first quarter of 1998, the Company completed its divestiture of
underutilized office space with the sale of its Cherry Hill, New Jersey,
office building for $13.5 million in cash. The Company recognized a gain on
the sale of this property of $3.1 million ($2.0 million after tax or $0.15
per share). The Company also completed the disposal of its remaining unused
office space in its former New York corporate offices. The provisions made
in 1996 for losses on sublease or lease cancellation of this space have, in
aggregate, not been materially different from the actual costs incurred in
disposal of the excess space. On October 27, 1999, the Company announced
its intention to sell its corporate headquarters building in Boston,
Massachusetts.
(K) Certain financial statement items have been reclassified to conform to the
current period's presentation.
(L) Although the Company continues to have possible liabilities related to
environmental pollution and other legal actions, management believes, on
the basis of its assessment of these matters, including consultation with
counsel, that none of these pending legal actions nor such possible
liabilities will result in payments of amounts, if any, that would have a
material adverse effect on the Company's financial position, results of
operations or earnings per share calculations.
The Trans-Pacific Petrochemical Indotama ("TPPI") project remains suspended
pending resolution of financing issues by the client. The TPPI project is
included in the Company's backlog in the amount of $401.7 million. The
Company has obtained approval to resell or use committed materials and
procured equipment to reduce costs of project suspension. The Company has
also had substantive discussions with potential purchasers of the olefins
plant which constitutes the majority of the Company's scope for the
project, and during the first quarter of 1999, signed a conditional
memorandum of understanding to sell the plant. Had the project been
cancelled as of September 30, 1999, and if resale of the olefins plant were
unlikely to be completed, the Company would have recorded a pre-tax charge
of approximately $75.5 million representing project working capital plus
current procurement commitments net of the estimated salvage value of
procured equipment and materials.
The Company was engaged in two international projects that incurred losses
in the first quarter. One of these projects is now finished and the other
is in the final stages of completion. Due to various factors, including
owner directed technical and schedule changes, increases in scope of the
currently authorized contracts and other factors, the cost to complete
these contracts has significantly exceeded each contract's value.
Management believes that it has valid contractual and equitable grounds for
change orders providing additional compensation under these contracts. The
Company has or expects to submit claims greater than losses incurred to
date. In the first quarter, the Company recognized operating losses of
$74.2 million on these projects.
A joint venture, in which the Company is a 50 percent owner, has submitted
claims to recover in excess of $112.0 million in connection with scope and
specification changes on a major petrochemical project in the Middle East.
The joint venture has been notified of claims in excess of $53.0 million,
which have been submitted by a subcontractor who has filed for arbitration.
Substantially all of the subcontractor's claims have been included in the
claims submitted by the joint venture to its client. The Company believes
current reserves are adequate to cover these claims, and has not recognized
any contract revenue in anticipation of recovery on its claims. In 1997,
the Company recognized losses of $25.8 million related to this contract.
The Company recognized approximately $35.0 million in revenue in 1998 for
change orders that have not yet received client approval, which in
management's judgment, is a conservative estimate of the probable amount to
be realized.
(M) In June 1998, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards No. 133, "Accounting for
Derivative Instruments and Hedging Activities." This Statement provides a
comprehensive and consistent standard for the recognition and measurement
of derivatives and hedging activities. It requires that an entity recognize
all derivatives as either assets or liabilities in the statement of
financial position and measure those instruments at fair value. In June
1999, the FASB agreed to defer the effective date of the Statement for one
year. The Statement is now effective for fiscal years beginning after June
15, 2000. The Company will adopt the new standard by January 1, 2001.
Management is evaluating the impact this Statement may have on the
Company's financial statements.
<PAGE>
Stone & Webster, Incorporated and Subsidiaries
Management's Discussion and Analysis of
Results of Operations and Financial Condition
The following is management's discussion and analysis of certain significant
factors that have affected the financial condition and results of operations of
Stone & Webster, Incorporated and Subsidiaries (the "Company") for the periods
noted. This discussion and analysis should be read in conjunction with the
Company's 1998 Annual Report on Form 10-K. Unless noted otherwise, earnings per
share calculations disclosed are basic and diluted.
Results of Operations
- ---------------------
On October 27, 1999 the Company announced its intention to sell the Nordic
Refrigerated services business unit (cold storage segment) and its corporate
headquarters building in Boston, Massachusetts. The Company is seeking buyers
and has retained outside consultants to assist with these sales. Accordingly,
the results of the Nordic Refrigerated Services business unit have been
classified as a discontinued operation and prior periods have been reclassified.
The Company's continuing operations are composed of the Engineering,
Construction and Consulting business. For this business, new orders were $219.4
million for the quarter ended September 30, 1999 compared with $725.1 million
for the third quarter of 1998.
The Company's Engineering, Construction and Consulting business reported revenue
of $286.1 million in the third quarter of 1999, a decrease of 16.6 percent from
the $343.0 million reported for the same period last year. The decrease in
revenue is primarily due to lower revenues in the Power, Process and Industrial
divisions. Operating loss was $6.6 million for the third quarter of 1999
compared to income of $2.3 million in the third quarter of 1998. This decrease
is primarily due to a provision of $10.4 million to cover anticipated costs to
complete three major domestic projects.
For the first nine months of 1999, the Engineering, Construction and Consulting
business had revenue of $839.1 million, a decrease of 10.7 percent compared to
revenue of $939.5 million for the same period in 1998. Operating loss for the
first nine months of 1999 was $70.7 million compared with operating income of
$10.6 million for the same period in 1998. The decrease in operating income is
primarily due to provisions of $74.2 million to cover anticipated costs of
completing two international projects, as reported in the first quarter of 1999,
and $10.4 million to cover anticipated costs of completing three domestic
projects in the current quarter. New orders were $719.5 million for the nine
months ended September 30, 1999 compared with $1,099.5 million for the nine
months ended September 30, 1998 and backlog was $2.5 billion compared to $2.6
billion December 31, 1998 and $2.7 billion at September 30, 1998.
Components of earnings per share from continuing operations for the three months
and nine months ended September 30 were:
Three Months Nine Months
Ended September 30, Ended September 30,
1999 1998 1999 1998
Basic and diluted earnings per
share from:
Operations $(0.92) $(0.13) $(5.49) $(0.32)
Pension related items 0.25 0.23 0.46 0.71
Ongoing operations (0.67) 0.10 (5.03) 0.39
Asset divestiture - - - 0.15
------ ------ ------ ------
Basic and diluted earnings per
share $(0.67) $ 0.10 $(5.03) $ 0.54
====== ====== ====== ======
Pension related items reduced operating costs by $3.3 million and $10.1 million
for the quarter and nine months ended September 30, 1999, respectively, and $5.1
million and $15.4 million for the same periods in the prior year. Pension
related items include a net pension credit for the Company's domestic
subsidiaries and a net pension cost for its foreign subsidiaries. The pension
credit is the result of a plan that is funded in excess of the projected benefit
obligation, which is primarily due to favorable asset performance.
During the first quarter of 1998, the Company completed the divestiture of
underutilized office space with the sale of its Cherry Hill, New Jersey, office
building for $13.5 million in cash. The Company recognized a gain on the sale of
this property of $3.1 million ($2.0 million after tax or $0.15 per share). The
Company also completed the disposal of its remaining unused office space in its
former New York corporate offices. The provisions made in 1996 for losses on
sublease or lease cancellation of this space have, in aggregate, not been
materially different from the actual costs incurred in disposal of the excess
space. Following the sale of the corporate headquarters building in Boston,
Massachusetts, the Company will no longer realize net rental income from third
party tenants of the building which amounted to approximately $4.3 million for
the nine months ended September 30, 1999, and may incur increased rental expense
based on market rates.
The Trans-Pacific Petrochemical Indotama ("TPPI") project remains suspended
pending resolution of financing issues by the client. The TPPI project is
included in the Company's backlog in the amount of $401.7 million. The Company
has obtained approval to resell or use committed materials and procured
equipment to reduce costs of project suspension. The Company has also had
substantive discussions with potential purchasers of the olefins plant which
constitutes the majority of the Company's scope for the project, and during the
first quarter of 1999, signed a conditional memorandum of understanding to sell
the plant. Had the project been cancelled as of September 30, 1999, and if
resale of the olefins plant were unlikely to be completed, the Company would
have recorded a pre-tax charge of approximately $75.5 million representing
project working capital plus current procurement commitments net of the
estimated salvage value of procured equipment and materials.
The Company was engaged in two international projects that incurred losses in
the first quarter of 1999. One of these projects is now finished and the other
is in the final stages of completion. Due to various factors, including owner
directed technical and schedule changes, increases in scope of the currently
authorized contracts and other factors, the cost to complete these contracts has
significantly exceeded the contract's value. Management believes that it has
valid contractual and equitable grounds for change orders providing additional
compensation under these contracts. The Company has or expects to submit claims
greater than the losses incurred to date. In the first quarter, the Company
recognized operating losses of $74.2 million on these projects.
A joint venture, in which the Company is a 50 percent owner, has submitted
claims to recover in excess of $112.0 million in connection with scope and
specification changes on a major petrochemical project in the Middle East. The
joint venture has been notified of claims in excess of $53.0 million, which have
been submitted by a subcontractor who has filed for arbitration. Substantially
all of the subcontractor's claims have been included in the claims submitted by
the joint venture to its client. The Company believes current reserves are
adequate to cover these claims, and has not recognized any contract revenue in
anticipation of recovery on its claims. In 1997, the Company recognized losses
of $25.8 million related to this contract.
The Company recognized approximately $35.0 million in revenue in 1998 for change
orders that have not yet received client approval, which in management's
judgment, is a conservative estimate of the probable amount to be realized.
Engineering, Construction and Consulting business orders and backlog for the
three months and nine months ended September 30, 1999 and 1998 were (in
thousands):
Three Months Nine Months
Ended September 30, Ended September 30,
1999 1998 1999 1998
---- ---- ---- ----
Beginning backlog $2,583,220 $2,357,122 $2,636,166 $2,519,302
Orders 219,393 725,113 719,498 1,099,473
Backlog acquired (BCI) - - - 59,944
Revenue (286,071) (343,040) (839,122) (939,524)
---------- ---------- ---------- ----------
Ending backlog $2,516,542 $2,739,195 $2,516,542 $2,739,195
========== ========== ========== ==========
Orders represent the net amount of new orders, cancellations and scope changes.
Discontinued Operation
- ----------------------
The Company's discontinued cold storage segment reported operating income of
$2.0 million and $6.4 million for the quarter and nine months ended September
30, 1999, respectively, compared with operating income of $1.6 million and $6.2
million for the same periods in 1998. Revenue was $11.7 million and $35.1
million for the quarter and nine months ended September 30, 1999, respectively,
compared with revenue of $7.4 million and $21.9 million for the same periods in
1998. The improvement in the discontinued cold storage segment revenue is the
result of the acquisition of The Nordic Group in the fourth quarter of 1998. The
decrease in operating income is a result of higher nonrecurring costs associated
with restructuring the Company's pre-acquisition facilities and the effects of
hurricanes and resulting flooding on operations. No significant direct damage
was experienced by the cold storage facilities.
General and Administrative Expenses, Other Income (Expenses) and Income Taxes
General and administrative expenses for the quarter and nine months ended
September 30, 1999 were $13.7 million and $47.3 million, respectively, compared
with $16.2 million and $47.9 million for the same periods in 1998. The second
quarter of 1999 includes a $2.5 million charge to general and administrative
expenses for severance costs which was partially offset by cost savings realized
from the restructuring of the Company's Engineering and Construction activities.
Net interest expense for the quarter ended September 30, 1999 was $2.2 million
compared to $0.4 million for the same period in 1998. Net interest expense for
the first nine months was $5.0 million, compared with net interest income of
$0.1 million for the same period in 1998, due to increased bank loans. During
the first quarter of 1999, the annual tax benefit was recognized to the extent
of the net deferred tax liability; therefore, no provision for taxes was
required for the third quarter. In addition, a valuation allowance was
established against net operating loss carryforwards in excess of the net
deferred tax liability position. In 1998, the tax provision was based upon the
expected annual earnings among domestic and international subsidiaries, prior to
loss provisions recorded at year end.
Financial Condition
- -------------------
Cash and cash equivalents decreased by $10.4 million during the first nine
months of 1999. Net cash used for operating activities of $25.9 million reflects
a decrease in operating working capital (which consists of accounts receivable
and costs and revenue in excess of billings less accounts payable and billings
in excess of costs and revenue recognized) and depreciation and amortization
expense for the nine months ended September 30, 1999. The decrease in operating
working capital was primarily due to provisions taken on two international
projects in the first quarter and three domestic projects in the third quarter.
The decrease in operating working capital was offset by the operating loss and
deferred income taxes. Net cash used for investing activities of $0.1 million
reflects purchases of fixed assets used in the Company's operations and the
proceeds on a note receivable. Net cash provided by financing activities of
$15.6 million reflects the payment of dividends, the repayment of long-term debt
and borrowings under bank loans. Total debt was $151.9 million at September
30,1999, compared to $130.8 million at December 31, 1998.
During the third quarter of 1999, the Company finalized negotiations on a $230.0
million collateralized line of credit with a group of banks, which provided up
to $130 million in direct borrowing for operating funds and $100 million in
letters of credit. Upon closing the new facility, the Company repaid the bank
loans and certain long-term debt that was outstanding as of the end of the
second quarter. As of September 30, 1999, $129.7 million of direct borrowings
and $84.2 million of letters of credit were outstanding under this new
agreement. As of September 30, 1999, the Company had foreign subsidiary banking
facilities available totaling $9.9 million.
Although the Company has substantial marketable assets, the losses incurred in
the past 24 months have negatively impacted the Company's cash position. As of
the end of the third quarter of 1999, the Company had fully drawn the cash
available to it under its current credit facility and the amount of the
Company's past due trade payables had increased, as reflected in accounts
payable on the Consolidated Balance Sheets, with certain of the Company's
vendors and subcontractors having delayed work to be performed by them.
In order to improve the Company's cash liquidity, the Company has retained
financial advisors who are working with the Company to arrange both interim and
longer term financing and to restructure the Company's balance sheet and assist
with asset sales authorized by the Board of Directors. To enhance liquidity and
focus on its core competencies, the Company intends to sell its corporate
headquarters building in Boston, Massachusetts, and its Nordic Refrigerated
Services business unit. Sale of these assets, which are currently carried on the
Company's books for approximately $125 million, is expected to yield in excess
of $300 million in gross proceeds.
Because of the losses in the third quarter, the Company requested waivers from
its bank group regarding certain covenants in its principal credit agreement for
which it is not in compliance, and the banks have waived those covenants until
November 29, 1999. The credit agreement matures at the end of January 2000. The
Company will require additional short-term funding to continue normal
operations, and it is in active discussions with its principal lenders to obtain
such funding.
In light of the Company's current liquidity needs, on October 26, 1999 the Board
of Directors decided to omit the Company's normal quarterly dividend of 15 cents
per share. The Board will re- evaluate the dividend at its meeting following the
end of the current quarter based on the Company's circumstances at that time.
Year 2000 Compliance
- --------------------
The Company is finalizing the upgrade of its computer applications in part to
ensure their functionality with respect to the Year 2000.
The Company has substantially completed its evaluation of all software and
information systems which it uses and are to be validated as Year 2000
compliant. The Company expects to complete the implementation of the systems and
programming changes necessary to address the Year 2000 issue during the
remainder of 1999. Key financial systems will become compliant through
implementation of new enterprise-wide financial systems. The primary objective
of implementing these new systems is to improve access to financial information
of the Company and to implement a state-of-the-art project accounting system.
Therefore, costs related to this implementation effort are not considered Year
2000 compliance costs.
The Company is giving consideration to compliance by third party suppliers.
Failure by third party suppliers to become Year 2000 compliant could result in
the Company's inability to obtain products as scheduled, which could potentially
lead to delays in meeting client orders. The Company is also reviewing the Year
2000 readiness of clients that are material to the Company's business, if any.
Failure by material customers to become Year 2000 compliant could result in the
Company's inability to obtain or perform work on a timely basis for such
customers, leading to delays in receipt of revenue.
The Company is taking protective measures regarding the purchases from third
party suppliers of software, hardware and computer information systems. The
Company is obtaining assurances that the information systems and related
products supplied will be Year 2000 compliant. As of September 30, 1999, the
Company has identified and contacted a substantial number of its significant
suppliers in regards to Year 2000 compliance. No definitive conclusions can be
made regarding whether the software or systems of third party suppliers will
have a materially adverse effect on the Company's business, results of
operations or financial condition. However, at this time, management does not
believe that the Company will experience significant exposure related to the
software or systems of third party suppliers.
The Company is reviewing existing contractual obligations with its clients to
determine whether any Year 2000 compliance exposure exists to its clients or
third parties. As of September 30, 1999, no such exposure had been determined.
The Company currently believes that systems and equipment purchased by it for
delivery to third parties will be made Year 2000 compliant during 1999.
A formal contingency plan will not be formulated unless the Company identifies
specific areas where there is substantial risk of Year 2000 problems occurring,
and no such areas have been identified as of this date. The Company has not yet
developed an estimate of material lost revenue due to Year 2000 issues in a most
likely worst case Year 2000 scenario because it has not yet completed all of the
necessary reviews. To date, the cost of the reviews and analysis have totaled
less than $0.3 million. The Year 2000 review is intended to correct the
remaining internal systems that are not Year 2000 compliant and to identify any
client or other external situations in which the Company or its vendors have
provided systems that are not Year 2000 compliant. The cost of correcting
external Year 2000 compliance situations, if any, cannot be determined until
such cases, if any exist, are identified and evaluated. The cost to correct
internal systems and review external systems is estimated to be $0.5 million.
Readers are cautioned that forward-looking statements contained in the Year 2000
Issue disclosure should be read in conjunction with the Company's disclosures
under the heading: "Forward- Looking Information."
Other Accounting Matters
- ------------------------
In June 1998, the FASB issued Statement of Financial Accounting Standards No.
133, "Accounting for Derivative Instruments and Hedging Activities." This
Statement provides a comprehensive and consistent standard for the recognition
and measurement of derivatives and hedging activities. It requires that an
entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. In
June 1999, the FASB agreed to defer the effective date of the Statement for one
year. The Statement is now effective for fiscal years beginning after June 15,
2000. The Company will adopt the new standard by January 1, 2001. Management is
evaluating the impact this Statement may have on the Company's financial
statements.
Forward-Looking Information
- ---------------------------
Any of the statements or comments in this Form 10-Q that refer to the Company's
estimated or future results are forward-looking and reflect the Company's
current analysis of existing trends and information. The Company cautions that a
variety of factors including, but not limited to, the following could cause
business conditions and results to differ materially from what is contained in
forward-looking statements: changes in the rate of economic growth in the United
States and other international economies, changes in investment by the energy,
power and environmental industries, the uncertain timing of awards and
contracts, changes in regulatory environment, changes in project schedules,
changes in trade, monetary and fiscal policies worldwide, currency fluctuations,
outcomes of pending and future litigation, protection and validity of patents
and other intellectual property rights, and increasing competition by foreign
and domestic companies and other risks detailed from time to time in the
Company's filings with the Securities and Exchange Commission.
The statements under the caption "Year 2000 Compliance" describing the Company's
plans and objectives for handling the Year 2000 issue and the expected impact of
the Year 2000 issue on the Company are forward-looking statements. Those
statements involve risks and uncertainties that could cause actual results to
differ materially from the results discussed above. Factors that might cause
such a difference include, but are not limited to, delays in executing the plan
outlined above and unforeseen or increased costs associated with the
implementation of the plan and any necessary changes to the Company's systems.
Any inability experienced by the Company during implementation resulting from
necessary changes not completed in a timely manner could have an adverse effect
on the results of operations. Moreover, even if the Company successfully
implements the changes necessary to address the Year 2000 issue, there can be no
assurances that the Company will not be adversely affected by the failure of
others, including vendors and clients, to become Year 2000 compliant.
<PAGE>
PART II. Other Information
Item 6. Exhibits and Reports on Form 8-K
Stone & Webster, Incorporated and Subsidiaries
Exhibits and Reports on Form 8-K.
(a) Exhibit Index
(4) Instruments defining the rights of security holders, including
indentures.
As of September 30, 1999, registrant and its subsidiaries had
outstanding long-term debt (excluding current portion) totaling
approximately $19.9 million, principally in connection with a mortgage
relating to real property for a subsidiary's office building and in
connection with capitalized lease commitments for the acquisition of
certain office equipment. None of these agreements are filed herewith
because the amount of indebtedness authorized under each such
agreement does not exceed 10 percent of the total assets of the
registrant and its subsidiaries on a consolidated basis; the
registrant hereby undertakes to furnish copies of such agreements to
the Commission upon request.
(10) Credit Agreement Dated as July 30, 1999 (filed herewith).
(27) Financial Data Schedule.
(b) Reports on Form 8-K
Registrant did not file any reports on Form 8-K during the quarter for
which this report is filed.
<PAGE>
Stone & Webster, Incorporated and Subsidiaries
FORM 10-Q
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.
STONE & WEBSTER, INCORPORATED
By: /S/ THOMAS L. LANGFORD
-----------------------------------------------
Dated: November 15, 1999 Thomas L. Langford
Executive Vice President
(Duly authorized officer and principal
financial officer)
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEET AND CONSOLIDATED STATEMENT OF OPERATIONS AND RETAINED EARNINGS AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 35114
<SECURITIES> 0
<RECEIVABLES> 270224
<ALLOWANCES> 5914
<INVENTORY> 0
<CURRENT-ASSETS> 422690
<PP&E> 370225
<DEPRECIATION> 152881
<TOTAL-ASSETS> 872665
<CURRENT-LIABILITIES> 590089
<BONDS> 0
0
0
<COMMON> 17731
<OTHER-SE> 208641
<TOTAL-LIABILITY-AND-EQUITY> 872665
<SALES> 0
<TOTAL-REVENUES> 839122
<CGS> 0
<TOTAL-COSTS> 862510
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6629
<INCOME-PRETAX> (75734) <F1>
<INCOME-TAX> (10000)
<INCOME-CONTINUING> (65734)
<DISCONTINUED> 6401
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (59333)
<EPS-BASIC> (4.54)
<EPS-DILUTED> (4.54)
<FN>
<F1>Includes General and Administrative Expenses of $47,303 and interest income
of $1,586 not reflected on this tag list.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEET AND CONSOLIDATED STATEMENT OF OPERATIONS AND RETAINED EARNINGS AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 33783
<SECURITIES> 0
<RECEIVABLES> 240220
<ALLOWANCES> 2825
<INVENTORY> 0
<CURRENT-ASSETS> 425458
<PP&E> 339248
<DEPRECIATION> 186010
<TOTAL-ASSETS> 795782
<CURRENT-LIABILITIES> 349680
<BONDS> 22542
0
0
<COMMON> 17731
<OTHER-SE> 337633
<TOTAL-LIABILITY-AND-EQUITY> 795782
<SALES> 0
<TOTAL-REVENUES> 939524
<CGS> 0
<TOTAL-COSTS> 881096
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2086
<INCOME-PRETAX> 10682 <F1>
<INCOME-TAX> 3779
<INCOME-CONTINUING> 6903
<DISCONTINUED> 3529
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10432
<EPS-BASIC> 0.81
<EPS-DILUTED> 0.81
<FN>
<F1>Includes General and Administrative Expenses of $47,868 and interest income
of $2,208 not reflected on this tag list.
</FN>
</TABLE>
CREDIT AGREEMENT
Dated as of July 30, 1999
among
STONE & WEBSTER, INCORPORATED,
BANK OF AMERICA, N.A.,
as Agent,
and
a Letter of Credit Issuing Bank,
HSBC BANK USA,
as Co-Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BANC OF AMERICA SECURITIES LLC
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS
1.01 Certain Defined Terms
1.02 Other Interpretive Provisions xxviii
1.03 Accounting Principles xxix
ARTICLE II THE CREDITS xxx
2.01 Amounts and Terms of Commitments xxx
2.02 Loan Accounts xxx
2.03 Procedure for Borrowing xxxi
2.04 Conversion and Continuation Elections xxxii
2.05 Voluntary Termination or Reduction of Commitments xxxiii
2.06 Optional Prepayments xxxiv
2.07 Mandatory Prepayments of Loans; Mandatory Commitment
Reductions xxxiv
2.08 Repayment xxxv
2.09 Interest xxxvi
2.10 Fees xxxvi
(a) Arrangement, Agency, Upfront Fees xxxvi
(b) Facility Fees xxxvii
2.11 Computation of Fees and Interest xxxvii
2.12 Payments by the Company xxxviii
2.13 Payments by the Banks to the Agent xxxviii
2.14 Sharing of Payments, Etc. xxxix
2.15 Security and Guaranty xxxix
ARTICLE III THE LETTERS OF CREDIT xl
3.01 The Letter of Credit Facility xl
3.02 Issuance, Amendment and Renewal of Letters of Credit xli
3.03 Existing Letters of Credit; Risk Participations, Drawings
and Reimbursements xliii
3.04 Repayment of Participations xlvi
3.05 Role of the Issuing Bank xlvi
3.06 Obligations Absolute xlvii
3.07 Cash Collateral Pledge xlviii
3.08 Letter of Credit Fees xlviii
3.09 Uniform Customs and Practice xlix
3.10 Currency Determinations xlix
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY xlix
4.01 Taxes. xlix
4.02 Illegality li
4.03 Increased Costs and Reduction of Return lii
4.04 Funding Losses lii
4.05 Inability to Determine Rates liii
4.06 Reserves on Offshore Rate Loans liii
4.07 Certificates of Banks liv
4.08 Substitution of Banks liv
4.09 Survival liv
4.10 Increase in Commitments liv
ARTICLE V CONDITIONS PRECEDENT lv
5.01 Conditions of Initial Credit Extensions lv
(a) Credit Agreement; Loan Documents and Notes lv
(b) Collateral Documents lvi
(c) Resolutions; Incumbency lvii
(d) Organization Documents; Good Standing lvii
(e) Legal Opinions lvii
(f) Payment of Fees lviii
(g) Certificate lviii
(h) Year 2000 Compliance lviii
(i) Valuation lviii
(j) Insurance Policies lix
(k) Replacement of Prior Bank Agreements; Release of Liens lix
(m) Other Documents lix
5.02 Conditions to All Credit Extensions lix
(a) Notice, Application lix
(b) Continuation of Representations and Warranties lix
(c No Existing Default lx
5.03 Conditions for a Domestic Principal Subsidiary to Become a
Guarantor lx
ARTICLE VI REPRESENTATIONS AND WARRANTIES lxi
6.01 Corporate Existence and Power lxi
6.02 Corporate Authorization; No Contravention lxi
6.03 Governmental Authorization lxi
6.04 Binding Effect lxii
6.05 Litigation lxii
6.06 No Default lxii
6.07 ERISA lxii
6.08 Use of Proceeds; Margin Regulations lxiii
6.09 Title to Properties lxiii
6.10 Taxes lxiii
6.11 Financial Condition lxiv
6.12 Environmental Matters lxiv
6.13 Regulated Entities lxiv
6.14 No Burdensome Restrictions lxv
6.15 Copyrights, Patents, Trademarks and Licenses, etc. lxv
6.16 Subsidiaries lxv
6.17 Insurance lxv
6.18 Labor Relations lxv
6.19 Representations and Warranties in Related Documents lxvi
6.20 Solvency lxvi
6.21 Swap Obligations lxvii
6.22 Year 2000 lxvii
6.23 Collateral Documents lxvii
6.24 121A Agreements lxviii
6.25 Full Disclosure lxviii
ARTICLE VII AFFIRMATIVE COVENANTS lxviii
7.01 Financial Statements lxix
7.02 Certificates; Other Information lxix
7.03 Notices lxx
7.04 Preservation of Corporate Existence, Etc lxxi
7.05 Maintenance of Property lxxi
7.06 Insurance lxxi
7.07 Payment of Obligations lxxii
7.08 Compliance with Laws lxxii
7.09 Compliance with ERISA lxxii
7.10 Inspection of Property and Books and Records lxxii
7.11 Environmental Laws lxxiii
7.12 Use of Proceeds lxxiii
7.13 Additional Guarantors lxxiii
7.14 Further Assurances lxxiii
ARTICLE VIII NEGATIVE COVENANTS lxxiv
8.01 Indebtedness lxxiv
8.02 Limitation on Liens lxxv
8.03 Disposition of Assets lxxvi
8.04 Limitation on Acquisitions and Investments lxxvii
8.05 Business Activities lxxviii
8.06 Limitation on Capital Expenditures lxxviii
8.07 Limitations on Fundamental Changes lxxviii
8.08 ERISA lxxviii
8.09 Consolidated Net Worth lxxix
8.10 Fixed Charge Coverage Ratio lxxix
8.11 Funded Debt Coverage Ratio lxxix
8.12 Transactions with Affiliates lxxix
8.13 Use of Proceeds lxxix
8.14 Joint Ventures lxxx
8.15 Restricted Payments lxxx
8.16 Accounting Changes lxxxi
8.17 Amendments lxxxi
ARTICLE IX EVENTS OF DEFAULT lxxxii
9.01 Event of Default lxxxii
(a) Non-Payment lxxxii
(b) Representation or Warranty lxxxii
(c) Specific Defaults lxxxii
(d) Other Defaults lxxxii
(e) Cross-Default lxxxii
(f) Insolvency; Voluntary Proceedings lxxxiii
(g) Involuntary Proceedings lxxxiii
(h) ERISA lxxxiii
(i) Monetary Judgments lxxxiii
(j) Non-Monetary Judgments lxxxiv
(k) Change of Control lxxxiv
(l) Guarantor Defaults lxxxiv
(m) Invalidity of Subordination Provisions lxxxiv
(n) Collateral lxxxiv
(o) Enforceability of Loan Documents lxxxiv
9.02 Remedies lxxxiv
9.03 Rights Not Exclusive lxxxv
ARTICLE X THE AGENT lxxxv
10.01 Appointment and Authorization lxxxv
10.02 Delegation of Duties lxxxvi
10.03 Liability of Agent lxxxvi
10.04 Reliance by Agent lxxxvii
10.05 Notice of Default lxxxvii
10.06 Credit Decision lxxxvii
10.07 Indemnification of Agent lxxxviii
10.08 Agent in Individual Capacity lxxxviii
10.09 Successor Agent lxxxix
10.10 Withholding Tax lxxxix
10.11 Co-Agents xc
ARTICLE XI MISCELLANEOUS xci
11.01 Amendments and Waivers xci
11.02 Notices xcii
11.03 No Waiver; Cumulative Remedies xcii
11.04 Costs and Expenses xciii
11.05 Company Indemnification xciii
11.06 Payments Set Aside xciv
11.07 Successors and Assigns xciv
11.08 Assignments, Participations, etc. xciv
11.09 Confidentiality xcvi
11.10 Set-off xcvi
11.11 Notification of Addresses, Lending Offices, Etc. xcvii
11.12 Counterparts xcvii
11.13 Severability xcvii
11.14 No Third Parties Benefitted xcvii
11.15 Governing Law and Jurisdiction xcvii
11.16 Waiver of Jury Trial xcviii
11.17 Currency xcviii
11.18 Entire Agreement xcix
<PAGE>
SCHEDULES
Schedule 1.01(b) Prior Bank Agreements
Schedule 2.01 Commitments
Schedule 3.03 Existing Letters of Credit
Schedule 6.03 Governmental Authorizations
Schedule 6.05 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.12 Environmental Matters
Schedule 6.16 Principal Subsidiaries
Schedule 6.17 Insurance Matters
Schedule 8.01(b) Permitted Indebtedness
Schedule 8.15(b)(i) Permitted Optional Payments
Schedule 11.02 Lending/Payment Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Note
Exhibit E Form of Mortgage
Exhibit F Form of Guaranty
Exhibit G Form of Security Agreement
Exhibit H-1 Form of Company Pledge Agreement
Exhibit H-2 Form of SWMC Pledge Agreement
Exhibit H-3 Form of SWEC Pledge Agreement
Exhibit H-4 Form of Nordic Pledge Agreement
Exhibit H-5 Form of NI Pledge Agreement
Exhibit I-1 Form of Legal Opinion of Company's Special Counsel
Exhibit I-2 Form of Legal Opinion of Company's General Counsel
Exhibit I-3 Form of Legal Opinion of Company's Special Local
Counsel
Exhibit J Form of Assignment and Acceptance
Exhibit K Form of Intercreditor Agreement
Exhibit L Form of Intercompany Note
Exhibit M Form of Subordination Provisions
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of July 30, 1999, among STONE &
WEBSTER, INCORPORATED, a Delaware corporation (the "Company"), THE SEVERAL
FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY TO THIS AGREEMENT (collectively,
the "Banks"; individually, a "Bank"), BANK OF AMERICA, N.A., an Issuing Bank,
BANK OF AMERICA, N.A., as Agent for the Banks, and HSBC BANK USA as Co-Agent.
WHEREAS, the Banks have agreed to make available to the Company certain
revolving credit facilities and a letter of credit facility upon the terms and
conditions set forth in this Agreement;
WHEREAS, in addition to its inclusion as a Bank hereunder, Bank of America
has agreed to act as an Issuing Bank, and Bank of America has agreed to act as
the Agent upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Accumulated Funding Deficiency" means with respect to any Plan that
is subject to the minimum funding standards of Section 412 of the Code, an
amount described in Section 412(a) of the Code.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or
equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary) provided that the
Company or the Subsidiary is the surviving entity.
"Additional Guarantor" has the meaning specified in Section 7.13.
"Additional Guaranty" has the meaning specified in Section 7.13.
"Affected Bank" has the meaning specified in Section 4.08.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, by contract, or otherwise.
"Agent" means Bank of America in its capacity as administrative agent
for the Banks hereunder, and any successor agent arising under Section
10.09.
"Agent-Related Persons" means Bank of America, any Issuing Bank
hereunder, any successor agent arising under Section 10.09 and any
successor letter of credit issuing bank hereunder, together with their
respective Affiliates (including, in the case of Bank of America, the
Arranger), and the officers, directors, employees, agents and attorneys-
in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
Schedule 11.02 or such other address as the Agent may from time to time
specify.
"Agreement" means this Credit Agreement.
"Applicable Facility Fee Rate" means a rate per annum equal to 0.40%.
"Applicable Margin" means, for each Base Rate Loan and Offshore Rate
Loan, the applicable rate per annum set forth under the relevant column
heading below:
Base Rate Loans Offshore Rate Loans
--------------- -------------------
0% 1.60%
"Arranger" means Banc of America Securities LLC, a Delaware limited
liability corporation.
"Assignee" has the meaning specified in Section 11.08(a).
"Attorney Costs" means and includes all reasonable and documented fees
and disbursements of any law firm or other external counsel, the allocated
cost of internal legal services and all disbursements of internal counsel.
"Bank" has the meaning specified in the introductory clause hereto.
References to the "Banks" shall include Bank of America and any other Bank
in its capacity as Issuing Bank; for purposes of clarification only, to the
extent that such Bank may have any rights or obligations in addition to
those of the Banks due to its status as an Issuing Bank, its status as such
will be specifically referenced.
"Banking Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are authorized
or required by law to close and (i) with respect to disbursements and
payments in and calculations pertaining to any Offshore Rate Loan in
Dollars, a day on which dealings are carried on in the applicable offshore
Dollar interbank market, and (ii) with respect to any disbursements and
payments in and calculations pertaining to any Letter of Credit denominated
in an Offshore Currency, a day on which commercial banks are open for
foreign exchange business in London, England, and on which dealings in the
relevant Offshore Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursement of or payment in
such Offshore Currency will be made or received hereunder.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America in
San Francisco, California, as its "reference rate." (The "reference rate"
is a rate set by Bank of America based upon various factors including Bank
of America's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate.)
Any change in the reference rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Revolving Loan or an L/C Advance, that bears
interest based on the Base Rate.
"Bank of America" means Bank of America, N.A., and its successors and
assigns.
"Borrowing" means a borrowing hereunder consisting of Revolving Loans
of the same Type made to the Company on the same day by the Banks under
Article II, and, other than in the case of Base Rate Loans, having the same
Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03.
"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting
of Loans of the same type made on the same day and, other than in the case
of Base Rate Loans, having the same Interest Period.
"Borrower Party" means the Company, each Domestic Principal Subsidiary
which is a party to the Guaranty, any other Subsidiary which is a party to
any Collateral Document and any Subsidiary which is listed as an account
party on an Existing Letter of Credit.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means a Banking Day.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"Capital Lease" shall mean any lease or other agreement for the use of
property which is required to be capitalized on a balance sheet of the
lessee or other user of property in accordance with GAAP.
"Capital Stock" means, as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for
or convertible into such shares, interests, participations, rights or other
equity.
"Capitalized Lease Obligations" with respect to any Person, shall mean
the aggregate amount which, in accordance with GAAP, is required to be
reported as a liability on the balance sheet of such Person at such time in
respect of such Person's interest as lessee under a Capital Lease.
"Cash Collateralize" means to pledge and deposit with or deliver to
the Agent, for the benefit of the Agent, the Issuing Bank and the Banks, as
additional collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to
the Agent and the Issuing Bank (which documents are hereby consented to by
the Banks). Derivatives of such term shall have corresponding meaning. The
Company hereby grants the Agent, for the benefit of the Agent, the Issuing
Bank and the Banks, a security interest in all such cash and deposit
account balances. Cash collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.
"Change in Control" means
(a) The beneficial ownership (within the meaning of Rule 13b-3
promulgated under the Exchange Act by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of 25% or more of either (i) the then-outstanding
shares of common stock of the Company (the "Outstanding Company Common
Stock') or (ii) the combined voting power of the then-outstanding
voting securities in the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the
following accumulations and acquisitions shall not constitute a Change
of Control;
(i) any acquisition directly from the Company or a
Subsidiary of the Company;
(ii) any acquisition or accumulation by the Company or
Subsidiary of the Company; or
(iii) any acquisition or accumulation by any employee stock
ownership or other benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company;
(b) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming
a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of
the Incumbent Board; or
(c) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
"Closing Date" means the date on which all conditions precedent set
forth in Section 5.01 are satisfied or waived by all Banks (or, in the case
of Section 5.01(f), waived by the Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986 and regulations
promulgated thereunder, as amended from time to time.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Company or any Guarantor as
debtor and their respective Subsidiaries in or upon which a Lien now or
hereafter exists in favor of the Banks, or the Collateral Agent on behalf
of the Banks or the Senior Secured Lenders, whether under this Agreement or
under any other documents executed by any such persons and delivered to the
Collateral Agent or the Banks or the Senior Secured Lenders.
"Collateral Agent" means Bank of America in its capacity as collateral
agent for the Banks and the other Senior Secured Lenders under the
Intercreditor Agreement, and any successor Collateral Agent arising under
the Intercreditor Agreement.
"Collateral Documents" means, collectively, (i) the Mortgages, the
Security Agreement, the Guaranty, any Additional Guaranty, the Pledge
Agreements, and all other security agreements, mortgages, deeds of trust,
lease assignments, lease subordination agreements, tenant estoppels,
guarantees and other similar agreements between the Company or its
Subsidiaries, as the case may be, and the Banks, the Agent or the
Collateral Agent, as the case may be, for the benefit of the Banks or the
Senior Secured Lenders, as the case may be, now or hereafter delivered to
the Banks, the Agent or the Collateral Agent pursuant to or in connection
with the transactions contemplated hereby, and all financing statements (or
comparable documents now or hereafter filed in accordance with the Uniform
Commercial Code or comparable law) against the Company or any Subsidiaries
or any Guarantor as debtor in favor of the Banks, the Agent or the
Collateral Agent, as the case may be, for the benefit of the Banks or the
Senior Secured Lenders, as the case may be, as secured party and (ii) any
amendments, supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the foregoing.
"Collateral Pool" means, collectively, all Collateral under the
Collateral Documents.
"Combined Commitments" means, as of any date of determination thereof,
the sum at such time of the Commitments of all the Banks.
"Combined Revolving Loan Commitment Sublimit" shall mean the sum at
such time of the Revolving Loan Commitment Sublimit of all the Banks, which
amount as of the Closing Date is $130,000,000, as revised from time to time
pursuant hereto.
"Commitments" means the commitment of each Bank which shall be the
amount specified therefor on Schedule 2.01 attached hereto and made part
hereof, as revised from time to time pursuant hereto.
"Company Pledge Agreement" means the Pledge Agreement dated the date
hereof from the Company to the Collateral Agent, for the benefit of the
Banks and the other Senior Secured Lenders, substantially in the form of
Exhibit H-1.
"Company Pledged Notes" means the intercompany notes issued by The
Nordic Group in favor of the Company and such other intercompany notes
pledged in accordance with the provisions of Section 8.04(f) to the
Collateral Agent, for the benefit of the Banks and the other Senior Secured
Lenders, pursuant to the Company Pledge Agreement.
"Company Pledged Shares" means each of the shares of (i) Summer
Street, (ii) Nordic Holdings, Inc., a Delaware corporation, and (iii)
Nordic Investors, Inc., a Nevada corporation, each pledged to the Agent,
for the benefit of the Banks and the other Senior Secured Lenders ,
pursuant to the Company Pledge Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated EBIT" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net
Income for such period, plus (b) any extraordinary loss reflected in such
Consolidated Net Income, minus (c) any extraordinary gain reflected in such
Consolidated Net Income, plus (d) Consolidated Interest Expense for such
period, plus (e) the aggregate amount of federal and state taxes on or
measured by income for such period (whether or not payable during that
period); provided, that, only with respect to any determination thereof
during such periods, the term "Consolidated EBIT" shall exclude (i)
$3,142,000 in charge-offs taken by the Company during the fiscal quarter
ending September 30, 1998, (ii) $88,271,000 in charge-offs taken by the
Company during the fiscal quarter ending December 31, 1998 and (iii)
$74,200,000 in charge-offs taken by the Company during the fiscal quarter
ending March 31, 1999.
"Consolidated EBITDA" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) Consolidated EBIT for
such period plus (b) depreciation, amortization and all other non-cash
expenses of the Company and its Subsidiaries on a consolidated basis for
such period.
"Consolidated Funded Debt" means, as of any date of determination, for
the Company and its Subsidiaries on a consolidated basis, 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 (including, without limitation, any other similar
obligations for borrowed money and off balance sheet debt associated with
asset securitizations); (b) any direct or contingent obligations of such
Person arising under Financial Letters of Credit, banker's acceptances,
bank guaranties, and all drawn but unreimbursed obligations arising under
letters of credit (other than Financial Letters of Credit); and (c) all
obligations of such Person as lessee under leases which have been or should
be, in accordance with GAAP, recorded as Capitalized Lease Obligations, all
determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, for the Company
and its Subsidiaries on a consolidated basis, total interest expense,
whether paid or accrued, determined in accordance with GAAP, including
commitment fees owed with respect to the unused portion of the Combined
Commitments, other fees hereunder, charges in respect of the portion of any
Capitalized Lease Obligations allocable to interest expense, but excluding
amortization of write-off of debt discount and expense and the portion of
the upfront costs and expenses for Hedge Agreements (to the extent included
in gross interest expense) fairly allocated to such Hedge Agreements as
expenses for such period, less interest income on Hedge Agreements for that
period and Hedge Agreements payments received.
"Consolidated Net Income" means, with respect to any fiscal period,
the net income of the Company and its Subsidiaries for that period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means stockholders' equity (other than any
interest of a stockholder represented by redeemable preferred shares) of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Rentals" means as of the date of any determination, for
the Company and its Subsidiaries on a consolidated basis, all fixed
payments (including all such payments which the lessee is obligated to make
to the lessor on termination of the lease or surrender of the property)
payable by for the Company and its Subsidiaries as lessee or sublessee
under a lease of real or personal property, but shall be exclusive of any
amounts required to be paid by the Company and its Subsidiaries (whether or
not designated as rents or additional rents) on account of maintenance,
repairs, insurance, taxes and similar charges. Fixed rents under so-call
"percentage leases" shall be computed solely on the basis of the minimum
rents, if any, required to be paid by the lessee regardless of sales volume
or gross revenues.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any Revolving
Loans hereunder, and (b) the Issuance of any Letters of Credit hereunder
(including the Existing Letters of Credit).
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Default Rate" has the meaning specified in Section 2.09(c).
"Disposition" means (i) the sale, lease, conveyance or other
disposition of Property, other than sales or other dispositions expressly
permitted under Section 8.03, and (ii) the sale or transfer by the Company
or any Subsidiary of the Company of any equity securities issued by any
Subsidiary of the Company and held by such transferor Person.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Domestic Principal Subsidiary" means a Principal Subsidiary that is
organized under the laws of any jurisdiction within the United States.
"Effective Amount" means (i) with respect to any Revolving Loans on
any date, the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Revolving Loans
occurring on such date; and (ii) with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any Issuances of Letters of Credit occurring on such
date and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect
on such date. For purposes of Section 2.07(a) the Effective Amount shall be
determined without giving effect to any mandatory prepayments to be made
under Section 2.07(b) or 2.07(c).
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the country in which it is organized
or another country which is also a member of the OECD the United States;
and (c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a Person of which a Bank
is a Subsidiary.
"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 or
injury to the environment.
"Environmental Laws" means all 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, health, safety and
land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
regulations promulgated thereunder, as amended from time to time.
"ERISA Affiliate" means any corporation which is a member of the same
controlled group of corporations as the Company within the meaning of
Section 414(b) of the Code, or any trade or business which is under common
control with the Company within the meaning of Section 414(c) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate (other than in connection with a standard termination
under Section 4041(b) of ERISA), the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
or (e) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified
in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder, as amended from time to time.
"Existing Letters of Credit" means the letters of credit described in
Schedule 3.03.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"FX Trading Office" means the Foreign Exchange Trading Center #5193,
San Francisco, California, of Bank of America, or such other of Bank of
America's offices as Bank of America may designate from time to time.
"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 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 Agent.
"Fee Letter" has the meaning specified in Section 2.10(a).
"Financial Letters of Credit" means a letter of credit classified as a
financial letter of credit for regulatory reporting purposes by the Issuing
Bank, which classification shall be conclusive and binding on the Company
and the Banks if reasonably determined.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal
quarter, the ratio of (a) Consolidated EBIT for the period of four
consecutive fiscal quarters ending on such date plus Consolidated Rentals
for such period to (b) Consolidated Interest Expense for such period plus
Consolidated Rentals for such period. Results of The Nordic Group or any
other Person acquired from time to time may be included in computing this
ratio to the extent the Company has furnished audited financial statements
therefor for the most recent fiscal year and interim financial statements
thereafter prepared in accordance with GAAP on a consistent basis for the
period of four consecutive fiscal quarters ending on, or most recently
ended prior to, such period.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"Funded Debt Coverage Ratio" means, as of the end of any fiscal
quarter, the ratio of (a) Consolidated Funded Debt as of such date to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters
ending on such date. Results of The Nordic Group or any other Person
acquired from time to time may be included in computing this ratio to the
extent the Company has furnished audited financial statements therefor for
the most recent fiscal year and interim financial statements thereafter
prepared in accordance with GAAP on a consistent basis for the period of
four consecutive fiscal quarters ending on, or most recently ended prior
to, such period.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
municipality or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" means each Domestic Principal Subsidiary party to the
Guaranty, including any Additional Guarantor as the case may be.
"Guaranty" shall mean the Guaranty dated as of the date hereof
executed by each Domestic Principal Subsidiary in favor of the Agent for
the benefit of the banks, substantially in the form attached hereto and
Exhibit F.
"Guaranty Obligation" means, for any Person, any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or
to advance or supply funds for the purchase of) any security for the
payment of such Indebtedness, (b) to purchase property, securities or
services for the primary purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness, or (c) to maintain
working capital, equity, or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness; provided, however, that the term Guaranty Obligation
shall not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guaranty Obligation
shall be deemed to be an amount equal to the stated or determinable amount
of the related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
Person in good faith.
"Headquarters Building" has the meaning specified in Section 5.01(i)
"Honor Date" has the meaning specified in Section 3.03(c).
"Indebtedness" means, as to any Person (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) any direct or contingent obligations of such Person arising
under Financial Letters of Credit, banker's acceptances, bank
guaranties, and all drawn but unreimbursed obligations arising under
letters of credit (other than Financial Letters of Credit);
(c) all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Obligations;
(d) all net obligations with respect to any Swap Contract in an
amount equal to the Swap Termination Value;
(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 trade payables entered into
in the ordinary course of business pursuant to ordinary terms), and
obligations (excluding prepaid interest thereon) described in clauses
(a) through (d) above and 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 Guaranty Obligations of such Person in respect of any of
the foregoing.
"Indemnified Liabilities" has the meaning specified in Section 11.05.
"Indemnified Person" has the meaning specified in Section 11.05.
"Independent Auditor" has the meaning specified in Section 7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief
of debtors, or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; undertaken under U.S. Federal, state or foreign
law, including the Bankruptcy Code.
"Intercreditor Agreement" means that certain Collateral, Agency and
Intercreditor Agreement dated the date hereof by and among the Company, the
Collateral Agent and the Senior Secured Lenders, substantially in the form
of Exhibit K.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and, as
to any Base Rate Loan, the last Business Day of each calendar quarter and
each date such Loan is converted into another Type of Loan.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one (1), two (2)
or three (3) months thereafter as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the
Termination Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Issuance Date" has the meaning specified in Section 3.01(a).
"Issue" means, with respect to any Letter of Credit, to incorporate
the Existing Letters of Credit into this Agreement, or to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means any of Bank of America, in its capacity as issuer
of one or more Letters of Credit hereunder and each Bank listed in Schedule
3.03 hereto as the issuer of an Existing Letter of Credit, together with
any replacement letter of credit issuer arising under Section 10.01(b) or
Section 10.09.
"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal entity)
now or hereafter formed by the Company or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with such
Person.
"L/C Advance" means each Bank's participation in any L/C Borrowing in
accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at
any time be in use at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of standby
or commercial documentary letters of credit as shall at any time be in use
at the Issuing Bank, as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date
when made nor, if available prior to the Termination Date, converted into a
Borrowing of Revolving Loans under Section 3.03(c).
"L/C Commitment" means the commitment of the Issuing Bank to Issue,
and the commitment of the Banks severally to participate in, Letters of
Credit (including the Existing Letters of Credit) from time to time Issued
or outstanding under Article III, in an aggregate amount not to exceed on
any date $110,00,000, as the same shall be reduced as a result of a
reduction in the L/C Commitment pursuant to Sections 2.05 and 2.07;
provided that the L/C Commitment is a part of the Combined Commitments,
rather than a separate, independent commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit, including
all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Bank's
standard form documents for letter of credit issuances.
"Lending Office" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 11.02, or such
other office or offices as such Bank may from time to time notify the
Company and the Agent.
"Letters of Credit" means the Existing Letters of Credit and any
letters of credit (whether Financial Letters of Credit or Non-Financial
Letters of Credit) issued by the Issuing Bank pursuant to Article III.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing
lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the Uniform Commercial
Code or any comparable law) and any contingent or other agreement to
provide any of the foregoing, but not including the interest of a lessor
under an operating lease.
"Loan" means an extension of credit by a Bank to the Company under
Article II or Article III in the form of a Revolving Loan or L/C Advance.
"Loan Documents" means this Agreement, any Notes, the Intercreditor
Agreement, the Collateral Documents, the Fee Letter, the L/C-Related
Documents, and all other documents delivered to the Agent or any Bank in
connection herewith or therewith.
"Majority Banks" means at any time Banks then holding in excess of 50%
of the then aggregate unpaid principal amount of the Loans and beneficial
interests in L/C Obligations and, if no such principal amount is then
outstanding, Banks then having in excess of 50% of the Combined
Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse effect in, or a
material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company or the
Company and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of the Company or any Subsidiary to perform under any Loan
Document to which it is a party and to avoid any Event of Default; or (c) a
material adverse effect upon (i) the legality, validity, binding effect or
enforceability against the Company or any Subsidiary of any Loan Document
to which it is a party or (ii) the perfection or priority of any Lien
granted to the Banks, to the Agent or to the Collateral Agent, as the case
may be, for the benefit of the Banks under any of the Collateral Documents.
"Mortgage" means any deed of trust, mortgage, deed to secure debt or
other document creating a Lien on real property or any interest in real
property, substantially in the form attached hereto as Exhibit E.
"Multiemployer Plan" means a "multiemployer plan" within the meaning
of Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions, or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"Net Issuance Proceeds" means, with respect to any issuance of
Subordinated Debt, cash proceeds and non-cash proceeds received or
receivable in connection therewith, net reasonable out-of-pocket costs and
expenses paid or incurred in connection therewith in favor of any Person
not an Affiliate of the Company, such costs and expenses not to exceed 5%
of the gross proceeds of such issuance.
"Net Proceeds" means proceeds in cash, checks or other cash equivalent
financial instruments (including cash equivalents) as and when received by
the Person making a Disposition or obtaining a mortgage or other source of
funds in connection with Section 7.14(c), net of: (a) the direct costs
relating to such Disposition or mortgage or other such financing, (b) sale,
use or other transaction taxes paid or payable as a result thereof, and (c)
amounts required to be applied to repay principal, interest and prepayment
premiums and penalties on Indebtedness secured by a Lien on the asset which
is the subject of such Disposition.
"NI Pledge Agreement" means the Pledge Agreement dated the date hereof
from Nordic Investors, Inc., a Nevada corporation, to the Agent, for the
benefit of the Banks, substantially in the form of Exhibit H-5.
"NI Pledged Shares" means the partnership interests of Nordic
Refrigerated Services, LP, a Georgia limited partnership, pledged to the
Agent, for the benefit of the Banks and the other Senior Secured Lenders,
pursuant to the NI Pledge Agreement.
"Non-Financial Letter of Credit" means a commercial letter of credit
or a letter of credit classified as a performance letter of credit for
regulatory reporting purposes by the Issuing Bank, which classification
shall be conclusive and binding on the Company and the Banks if reasonably
determined.
"Nordic Pledge Agreement" means the Pledge Agreement dated the date
hereof from Nordic Holdings, Inc., a Delaware corporation, to the Agent,
for the benefit of the Banks and the other Senior Secured Lenders,
substantially in the form of Exhibit H-4.
"Nordic Pledged Shares" means each of (i) the shares of Nordic Rail
Services, Inc., a North Carolina corporation, (ii) the shares of Nordic
Transportation Services, Inc., a North Carolina corporation, (iii) the
shares of Nordic Refrigerated Services, Inc., a North Carolina corporation,
and (iv) the partnership interests of Nordic Refrigerated Services, LP, a
Georgia limited partnership, each pledged to the Agent, for the benefit of
the Banks and the other Senior Secured Lenders, pursuant to the Nordic
Pledge Agreement.
"Note" and "Notes" means any Promissory Note.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit B.
"Obligations" means all Loans, all reimbursement obligations with
respect to Letters of Credit, all fees and charges, and other Indebtedness,
advances, debts, liabilities, obligations, covenants and duties arising
under this Agreement or any other Loan Document owing by the Company to any
Bank, the Agent, or any other Person required to be indemnified under any
Loan Document, of any kind or nature, present or future, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit,
loan, guaranty, indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however
acquired.
"Offshore Currency" means any currency other than Dollars, so long as
such currency is freely transferable and convertible into Dollars and is
traded and readily available to the Agent in the London interbank market.
"Offshore Rate" means, for each Interest Period in respect of Offshore
Rate Loans comprising part of the same Borrowing, the rate of interest per
annum determined by the Agent to be the arithmetic mean (rounded upward, if
necessary, to the next 1/16th of 1%) of the rates of interest per annum
notified to the Agent by the Reference Bank as the rate of interest at
which deposits in Dollars or the applicable Offshore Currency, as the case
may be, in the approximate amount of the amount of the Loan to be made or
continued as, or converted into, an Offshore Rate Loan by the Reference
Bank and having a maturity comparable to such Interest Period would be
offered to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"121A Agreements" means, collectively, the Land Disposition Agreement
dated as of June 29, 1973 between Summer Street and the Boston
Redevelopment Authority, the agreement dated July 6, 1973 between Summer
Street and the City of Boston commonly known as the "6A Agreement", the
Application submitted by Summer Street and filed with the Boston
Redevelopment Authority and the agreement dated February 5, 1973 executed
by the Borrower with respect to the nontransfer of the shares of Summer
Street.
"Organization Documents" means (i) for any corporation or limited
liability company, as the case may be, the certificate or articles of
incorporation or certificate of organization, as the case may be, the
bylaws or operating agreement, as the case may be, any certificate of
determination or instrument relating to the rights of preferred
shareholders or members, as the case may be, of such corporation, or
limited liability company, any shareholder or member rights agreement, and
all applicable resolutions of the board of directors or managers (or any
committee thereof) of such corporation or limited liability company, as the
case may be, and (ii) for any partnership, the certificate of partnership,
the partnership agreement and all applicable resolutions of the partners of
such partnership.
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"Overnight Foreign Currency Rate" means, for any amount payable in a
currency other than Dollars, the rate of interest per annum as determined
by the Issuing Bank (rounded upwards, if necessary, to the nearest whole
multiple of one-sixteenth of one percent (1/16 of 1%)) at which overnight
or weekend deposits of the appropriate currency (or, if such amount due
remains unpaid more than 3 Business Days, then for such period of time not
longer than 6 months as the Issuing Bank may elect in its absolute
discretion) for delivery in immediately available and freely transferable
funds would be offered by the Issuing Bank to prime banks in the interbank
market upon request of such prime banks for the applicable period as
determined above and in an amount comparable to the unpaid principal amount
of the related obligation (or, if the Issuing Bank is not placing deposits
in such currency in the interbank market, then the Issuing Bank's cost of
funds in such currency for such period).
"Participant" has the meaning specified in Section 11.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor or replacement entity thereto under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
which is subject to Title IV of ERISA and is sponsored or maintained by the
Company or any ERISA Affiliates or to which the Company or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of
a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five plan
years.
"Permitted Liens" means:
(a) Inchoate Liens incident to construction on or maintenance of
property; or Liens incident to construction on or maintenance of
property now or hereafter filed of record for which adequate reserves
have been set aside (or deposits made pursuant to applicable Laws) and
which are being contested in good faith by appropriate proceedings and
have not proceeded to judgment, provided that, by reason of nonpayment
of the obligations secured by such Liens, no such property is subject
to a material risk of loss or forfeiture;
(b) Liens for taxes and assessments on property which are not yet
past due; or Liens for taxes and assessments on property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by
such Liens, no such property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title, easements,
rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the businesses of the Company
and its Subsidiaries;
(d) rights reserved to or vested in any Governmental Authority to
control or regulate, or obligations or duties to any Governmental
Authority with respect to, the use of any property;
(e) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental
Authority with respect to, any right, power, franchise, grant,
license, or permit;
(f) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of
property;
(g) statutory Liens, other than those described in subsections
(a) or (b) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested
in good faith, provided that, if delinquent, adequate reserves have
been set aside with respect thereto and, by reason of nonpayment, no
property is subject to a material risk of loss or forfeiture;
(h) covenants, conditions, and restrictions affecting the use of
real property which in the aggregate do not materially impair the fair
market value or use of the real property for the purposes for which it
is or may reasonably be expected to be held;
(i) subject to any of the Collateral Documents, rights of tenants
under leases and rental agreements covering real property entered into
in the ordinary course of business of the Person owning such real
property;
(j) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including
Liens of judgments thereunder which are not currently dischargeable;
(k) Liens consisting of pledges or deposits of property to secure
performance in connection with operating leases made in the ordinary
course of business to which the Company or a Subsidiary of the Company
is a party as lessee;
(l) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as the Bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(m) Liens consisting of deposits of property to secure statutory
obligations of the Company or a Subsidiary of the Company in the
ordinary course of its business;
(n) Liens consisting of deposits of property to secure (or in
lieu of) surety, appeal or customs bonds in proceedings to which the
Company or a Subsidiary of the Company is a party in the ordinary
course of its business;
(o) Liens created by or resulting from any litigation or legal
proceeding involving the Company or a Subsidiary of the Company in the
ordinary course of its business which is currently being contested in
good faith by appropriate proceedings, provided that adequate reserves
have been set aside and no material property is subject to a material
risk of loss or forfeiture;
(p) other non-consensual Liens incurred in the ordinary course of
business but not in connection with an extension of credit, which do
not in the aggregate, when taken together with all other Liens,
materially impair the value or use of the property of the Company and
its Subsidiaries, taken as a whole; and
(q) Liens consisting of (i) an interest (other than a legal or
equitable co-ownership interest, an option or right to acquire a legal
or equitable co-ownership interest and any interest of a ground lessor
under a ground lease), that does not materially impair the value or
use of property for the purposes for which it is or may reasonably be
expected to be held, (ii) an option or right to acquire a Lien that
would be a Permitted Lien, (iii) the subordination of a lease or
sublease in favor of a financing entity and (iv) a license, or similar
right, of or to intangible assets granted in the ordinary course of
business.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and not for purposes
of speculation.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, which the Company or any ERISA Affiliate sponsors or maintains, or
to which the Company or any ERISA Affiliate makes, is making or is
obligated to make, contributions; and includes any pension plan or
Multiemployer Plan.
"Pledge Agreements" shall mean collectively, each of the Company
Pledge Agreement, the SWMC Pledge Agreement, the SWEC Pledge Agreement, the
Nordic Pledge Agreement and the NI Pledge Agreement, as each of the same
may be amended from time to time, and any supplement to any Pledge
Agreement.
"Pledged Collateral" or "Pledged Shares" means all of the Company
Pledged Shares, the Company Pledged Notes, the SWMC Pledged Shares, the
SWEC Pledged Shares, the Nordic Pledged Shares and the NI Pledged Shares or
any additional pledged shares, membership interests or partnership
interests or intercompany notes pledged pursuant to a Pledge Agreement.
"Principal Subsidiary" means any direct or indirect Subsidiary of the
Company which (a) owns directly or indirectly 5% or more of the book value
of the assets of the Company and its Subsidiaries on a consolidated basis
or (b) has contributed directly or indirectly more than 5% of the gross
consolidated revenues of the Company and its Subsidiaries for any one of
the preceding four fiscal quarters of the Company.
"Prior Bank Agreements" means those agreements listed on Schedule
1.01(b) hereto.
"Prior Bank Lender" means any lender party to any of the Prior Bank
Agreements.
"Prior Bank Liens" means those liens created, arising under or
existing pursuant to the Prior Bank Agreements, if any.
"Prohibited Transaction" means any transaction described in Section
406 of ERISA which is not exempt by reason of Section 408 of ERISA or the
transitional rules set forth in Section 414(c) of ERISA and any transaction
described in section 4975(c) of the Code which is not exempt by reason of
Section 4975(c)(2) or Section 4975(d) of the Code, or the transitional
rules of Section 2003(c) of ERISA.
"Projections" has the meaning specified in Section 6.11(b).
"Promissory Note" means a promissory note executed by the Company in
favor of a Bank pursuant to Section 2.02(b), in substantially the form of
Exhibit D.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent, in the case of either the Revolving Loan Commitment Sublimit or
the Commitments, as set forth under the appropriate column heading in
Schedule 2.01 attached hereto, as such Schedule may be amended from time to
time in accordance with the terms of this Agreement.
"Reference Bank" means Bank of America.
"Replacement Bank" has the meaning specified in Section 4.08.
"Reportable Event" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"Responsible Officer" means the chief executive officer or the
president of the Company, or any Subsidiary, as the case may be, or any
other officer having substantially the same authority and responsibility;
or, with respect to compliance with financial covenants, the chief
financial officer or the treasurer of the Company, or any other officer
having substantially the same authority and responsibility.
"Restricted Payment" means, (a) any dividend or other distribution,
direct or indirect, in respect of any shares of the Capital Stock of the
Company or any of its Subsidiaries, other than dividends or other
distributions payable solely in shares of its Capital Stock, or warrants,
rights, or options therefor, and dividends or other distributions by any of
its Subsidiaries to the Company or another Subsidiary; and (b) any
purchase, redemption, retirement or other acquisition of any shares of
Capital Stock of the Company or any of its Subsidiaries, now or hereafter
outstanding (except for any purchase, redemption, retirement or other
acquisition of any shares of Capital Stock of any Subsidiary by the
Company), or of any warrants, rights or options evidencing a right to
purchase or acquire any such shares (except in exchange for other shares of
Capital Stock or warrants, rights or options evidencing a right to purchase
or acquire any such shares).
"Revolving Loan" has the meaning specified in Section 2.01(b), which
term shall include an extension of credit by a Bank to the Company under
Section 2.01(b) or Article III in the form of a Revolving Loan or L/C
Advance. A Revolving Loan may be a Base Rate Loan or an Offshore Rate Loan
(each, a "Type" of Revolving Loan).
"Revolving Loan Commitment Sublimit" shall have the meaning assigned
thereto in Section 2.01, as may be increased or reduced pursuant to the
terms of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Security Agreement" means the Security Agreement dated the date
hereof executed by the Company and the other Borrower Parties signatory
thereto, in favor of the Collateral Agent, for the benefit of the Banks and
the other Senior Secured Lenders, substantially in the form of Exhibit G.
"Senior Secured Lenders" has the meaning specified in the
Intercreditor Agreement.
"Solvent" has the meaning specified in Section 6.20.
"Spot Rate" means, with respect to a currency, the rate quoted by Bank
of America as the spot rate for the purchase by Bank of America of such
currency with another currency through its FX Trading Office at
approximately 8:00 a.m. (San Francisco time) on the date two (2) Business
Days prior to the date as of which the foreign exchange computation is
made.
"Subordinated Debt" means any Indebtedness that is in any manner
subordinated in right of payment or security in any respect to Indebtedness
evidenced by the Notes, including without limitation any senior unsecured
debt; provided, that such Indebtedness has a maturity later than the
Termination Date.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
"Summer Street" means Summer Street Realty Corporation, a
Massachusetts corporation.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the mark-to-market value(s) for such Swap Contracts, as
determined by the Company based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Bank).
"SWEC" means Stone & Webster Engineers and Constructors, Inc., a
Delaware corporation.
"SWEC Pledge Agreement" means the Pledge Agreement dated the date
hereof from SWEC, to the Agent, for the benefit of the Banks and the other
Senior Secured Lenders, substantially in the form of Exhibit H-3.
"SWEC Pledged Shares" means the shares of SWMC pledged to the Agent,
for the benefit of the Banks and the other Senior Secured Lenders, pursuant
to the SWEC Pledge Agreement.
"SWMC" means Stone & Webster Management Consultants, Inc., a New York
corporation.
"SWMC Pledge Agreement" means the Pledge Agreement dated the date
hereof from SWMC to the Agent, for the benefit of the Banks and the other
Senior Secured Lenders, substantially in the form of Exhibit H-2.
"SWMC Pledged Shares" means each of (i) the shares of Stone & Webster
Overseas Consultants, Inc., a Delaware corporation, and (ii) the shares of
Power Technologies, Inc., a Delaware corporation, each pledged to the
Agent, for the benefit of the Banks and the other Senior Secured Lenders
pursuant to the SWMC Pledge Agreement.
"Taxes" means any and all present or future taxes (including
documentary taxes), levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with respect thereto
imposed by a Governmental Authority, including any liabilities imposed on
amounts paid by the Company to indemnify or reimburse any person for such
amounts, but excluding, in the case of each Bank and the Agent,
respectively, taxes imposed on or measured by its net income and franchise
taxes by the jurisdiction (or any political subdivision thereof) under the
laws of which such Bank or the Agent, as the case may be, is organized or
maintains a lending office.
"Termination Date" means the earlier to occur of:
(a) the sixth (6th) month anniversary following the Closing Date;
or
(b) the date on which the Revolving Loan Commitment Sublimit or
the L/C Commitment terminates in accordance with the provisions of
this Agreement; provided, that in no event shall the Termination Date
be later than January 31, 2000.
"The Nordic Group" means Nordic Warehouse, Inc., a North Carolina
corporation, Nordic Acquisitions, Inc., a North Carolina corporation,
American Warehouses, Inc., a North Carolina corporation, Buckeye
Distribution Company, a North Carolina corporation, Buckeye Management,
Inc., a North Carolina corporation, Nordic Rail Services, Inc., a North
Carolina corporation, and Nordic Transportation Services, Inc., a North
Carolina corporation.
"Total Consideration" means, with respect to any acquisition or
investment by any Person, (a) the sum of (i) all cash consideration paid or
agreed to be paid by such Person to make such acquisition or investment
(inclusive of payments by such Person of the seller's professional fees and
expenses and other out-of-pocket expenses in connection therewith), plus
(ii) the fair market value of all non-cash consideration paid by such
Person in connection therewith, plus (iii) an amount equal to the principal
or stated amount of all liabilities assumed or incurred by such Person in
connection therewith excluding trade payables and accruals incurred in the
ordinary course, minus (b) cash, if any, acquired as part of such
acquisition or investment. The principal or stated amount of any liability
assumed or incurred by a Person in connection with an acquisition or
investment which is a contingent liability shall be an amount equal to the
stated amount of such liability or, if the same is not stated, such
contingent liability shall be an amount equal to (i) if such contingent
liability is required to be reflected on a balance sheet of such Person in
accordance with GAAP, the amount required to be so reflected and (ii) if
such contingent liability is not required to be reflected on a balance
sheet of such Person in accordance with GAAP, the maximum reasonably
anticipated amount payable by such Person in respect thereof as determined
by such Person in good faith. Notwithstanding anything herein to the
contrary, the present value of any liability assumed in connection with any
covenants not to compete shall be discounted by a rate equal to the Base
Rate.
"Type" has the meaning specified in the definition of "Revolving
Loan."
"Uncommitted Lines" has the meaning specified in the Intercreditor
Agreement.
"Unfunded Pension Liability" means the excess of a Pension Plan's
accumulated benefit obligation over the fair value of that Pension Plan's
assets, determined in the most recent valuation of the Pension Plan to
comply with Statement of Financial Accounting Standards No. 87.
"United States" and "U.S." each means the United States of America.
"U.S. Dollar Equivalent" means at any time (i) with respect to any L/C
Obligations denominated in an Offshore Currency, the amount of Dollars
which would be realized by converting the relevant Offshore Currency into
Dollars in the spot market at the exchange rate quoted by the Issuing Bank
at approximately 11:00 a.m. (Los Angeles time) on the date on which a
computation thereof is required to be made, to major banks in the interbank
foreign exchange market for the purchase of Dollars with such foreign
currency, and (ii) with respect to any L/C Obligations denominated in
Dollars, the face amount thereof at such time.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the Capital Stock of
each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
"Year 2000 problem" has the meaning specified in Section 5.01(h).
1.02 Other Interpretive Provisions
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters.
All such limitations, tests and measurements are cumulative and shall each
be performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Agent or the Banks by way of
consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the
Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Agent
merely because of the Agent's or Banks' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance
with GAAP, consistently applied.
(b) Unless the context otherwise clearly requires, references herein
to "fiscal year" and "fiscal quarter" refer to such fiscal periods of the
Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
Each Bank severally agrees, on the terms and conditions set forth herein,
to make loans to the Company (each such loan, a "Revolving Loan") from time to
time on any Business Day during the period from the Closing Date to the
Termination Date, in an aggregate amount not to exceed at any time outstanding
as to each Bank the amount set forth on Schedule 2.01 opposite such Bank's name
under the heading "Revolving Loan Commitment Sublimit" (such amount, as the same
may be reduced under Sections 2.05 or 2.07 or as a result of one or more
assignments under Section 11.08, the Bank's "Revolving Loan Commitment
Sublimit"); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, (i) the Effective Amount of all outstanding Revolving Loans
shall not at any time exceed the Combined Revolving Loan Commitment Sublimit;
and (ii) the Effective Amount of all outstanding Revolving Loans and the
Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations shall not
at any time exceed the Combined Commitments; and provided further, that (i) the
Effective Amount of the Revolving Loans of any Bank shall not at any time exceed
such Bank's Revolving Loan Commitment Sublimit and (ii) the Effective Amount of
the Revolving Loans of any Bank plus the participation of such Bank in the
Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations shall not
at any time exceed such Bank's Commitment. Within the limits of each Bank's
Revolving Loan Commitment Sublimit, and subject to the other terms and
conditions hereof, the Company may borrow with respect to Revolving Loans under
this Section 2.01(b), prepay under Section 2.06 and reborrow with respect to
Revolving Loans under this Section 2.01(b) until the Sublimit Termination Date.
2.02 Loan Accounts.
(a) The Loans made by each Bank and the Letters of Credit Issued by
any Issuing Bank shall be evidenced by one or more accounts or records
maintained by such Bank or Issuing Bank, as the case may be, in the
ordinary course of business. The accounts or records maintained by the
Agent, each Issuing Bank and each Bank shall be conclusive absent manifest
error of the amount of the Loans made by the Banks to the Company and the
Letters of Credit Issued for the account of the Company, 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 the Company
hereunder to pay any amount owing with respect to the Loans or any Letter
of Credit.
(b) Upon the request of any Bank made through the Agent, the Loans
made by such Bank may be evidenced by one or more Notes, instead of or in
addition to loan accounts. Each such Bank 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 Company with
respect thereto. Each such Bank is irrevocably authorized by the Company to
endorse its Note(s) and each Bank's record shall be conclusive absent
manifest error; provided, however, that the failure of a Bank 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 Company hereunder or under
any such Note to such Bank.
2.03 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a Notice
of Borrowing, which notice must be received by the Agent (i) prior to 10:00
a.m. (San Francisco time) three (3) Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans; and (ii) prior to 9:00
a.m. (San Francisco time) on the requested Borrowing Date, in the case of
Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an aggregate
minimum amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) with respect to Offshore Rate Loans; the duration of the
Interest Period applicable to such Loans included in such notice. If
the Notice of Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans, such
Interest Period shall be one (1) month; provided, however, that with
respect to the Borrowing to be made on the Closing Date, the Notice of
Borrowing shall be delivered to the Agent not later than 10:00 a.m.
(San Francisco time) one (1) Business Day before the Closing Date and
such Borrowing will consist of Base Rate Loans only.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Company, at the
Agent's Payment Office by, 11:00 a.m. (San Francisco time) on the Borrowing
Date requested by the Company in funds immediately available to the Agent.
The proceeds of all such Loans will then be made available to the Company
by the Agent at such office by crediting the account of the Company, on the
books of Bank of America with the aggregate of the amounts made available
to the Agent by the Banks and in like funds as received by the Agent or by
wire transfer in accordance with written instructions provided to the Agent
by the Company of like funds as received by the Agent.
(d) Unless the Majority Banks shall otherwise agree, during the
existence of a Default or an Event of Default, the Company may not elect to
have a Loan be made as, or converted into or continued as, an Offshore Rate
Loan.
(e) After giving effect to any Borrowing, unless the Agent shall
otherwise consent, there may not be more than six (6) different Interest
Periods in effect for Revolving Loans that are Offshore Rate Loans.
2.04 Conversion and Continuation Elections. (a) The Company may, upon
irrevocable written notice to the Agent in accordance with Section 2.04(b):
(i) elect to convert on any Business Day, any Base Rate Loans (or
any part thereof in an amount not less than $5,000,000, or that is in
an integral multiple of $1,000,000 in excess thereof) into Offshore
Rate Loans of any Type; or
(ii) elect to convert on the last day of the applicable Interest
Period any Offshore Rate Loans having Interest Periods maturing on
such day into Base Rate Loans; or
(iii) elect to renew on the last day of the then current Interest
Period any Offshore Rate Loans (or any part thereof in an amount not
less than $5,000,000 (or that is in an integral multiple of
$1,000,000); provided, that if at any time the aggregate amount of
Offshore Rate Loans in respect of any Borrowing is reduced, by
payment, prepayment, or conversion of part thereof to be less than
$5,000,000, such Offshore Rate Loans shall automatically convert into
Base Rate Loans, and on and after such date the right of the Company
to continue such Loans as Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to
be received by the Agent (i) not later than 10:00 a.m. (San Francisco time)
at least three (3) Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as Offshore Rate
Loans; and (ii) not later than 9:00 a.m. (San Francisco time) on the
Conversion/ Continuation Date, if the Loans are to be converted into Base
Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type of Loans resulting from the proposed conversion or
continuation; and
(D) other than in the case of conversions into Base Rate Loans,
the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to any
Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, or if any Default or
Event of Default then exists, the Company shall be deemed to have elected
to convert such Offshore Rate Loans into Base Rate Loans effective as of
the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by
the Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Loans with respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise consent, during the existence
of a Default or Event of Default, the Company may not elect to have a Loan
converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Agent shall otherwise consent, there may not be more than six
(6) different Interest Periods in the aggregate in effect for Revolving
Loans that are Offshore Rate Loans.
2.05 Voluntary Termination or Reduction of Commitments. Subject to Section
4.04, the Company may, upon not less than three (3) Business Days' prior notice
to the Agent (and upon receipt of such notice the Agent shall promptly notify
the Banks thereof), terminate the Combined Commitments or permanently reduce the
Combined Commitments by an aggregate minimum amount of $5,000,000 or any
multiple of $1,000,000 in excess thereof; unless, after giving effect thereto
and to any prepayments of Loans made on the effective date thereof, (a) the
Effective Amount of the Revolving Loans of any Bank shall exceed such Bank's
Revolving Loan Commitment Sublimit, (b) the Effective Amount of all Revolving
Loans and the U.S. Dollar Equivalent of all L/C Obligations together would
exceed the amount of the Combined Commitments then in effect, or (c) the
Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations then
outstanding would exceed the L/C Commitment. Once reduced in accordance with
this Section, the Combined Commitments may not be increased. Any reduction of
the Combined Commitments shall be applied to each Bank according to its Pro Rata
Share. If and to the extent specified by the Company in the notice to the Agent,
some or all of the reduction in the Combined Commitments shall be applied to
reduce the L/C Commitment. All accrued commitment and letter of credit fees to,
but not including, the effective date of any reduction or termination of the
Combined Commitments shall be paid on the effective date of such reduction or
termination.
2.06 Optional Prepayments. Subject to Section 4.04, the Company may, at any
time or from time to time, upon not less than three (3) Business Days'
irrevocable notice to the Agent in the case of Offshore Rate Loans and upon not
less than one (1) Business Days' irrevocable notice to the Agent with respect to
Base Rate Loans, ratably prepay Loans in whole or in part, in minimum amounts of
$5,000,000 or any multiple of $1,000,000 in excess thereof, which prepayments
shall be applied to the Company's outstanding Loans. Such notice of prepayment
shall specify the date (which shall be a Business Day) and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Agent will promptly
notify each Bank of its receipt of any such notice, and of such Bank's Pro Rata
Share of such prepayment. If such notice is given by the Company, the Company
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with accrued interest
to each such date on the amount prepaid and any amounts required pursuant to
Section 4.04.
2.07 Mandatory Prepayments of Loans; Mandatory Commitment Reductions.
(a) Subject to Section 4.04, if on any date the Effective Amount of
the U.S. Dollar Equivalent of L/C Obligations and the Effective Amount of
the Revolving Loans exceeds the Combined Commitment then in effect, the
Company shall immediately upon demand pay over the amount of the excess to
the Agent to be applied against the Revolving Loans until paid in full with
any excess to be used to Cash Collateralize on such date the outstanding
Letters of Credit in an amount equal to the excess of the maximum amount
then available to be drawn under the Letters of Credit over the aggregate
L/C Commitment.
(b) [Intentionally Omitted].
(c) On any date when the outstanding (i) Revolving Loans (after giving
effect to any Borrowings effected on such date) together with the Effective
Amount of the U.S. Dollar Equivalent of L/C Obligations exceeds the
Combined Commitments or (ii) Revolving Loans (after giving effect to any
Borrowings effected on such date) exceeds the Revolving Loan Commitment
Sublimit, the Company shall make a mandatory prepayment of the Revolving
Loans on a pro rata basis in such amount as may be necessary so that the
aggregate amount of outstanding Revolving Loans after giving effect to such
prepayment does not exceed the Combined Revolving Loan Commitment Sublimit
then in effect.
(d) If the Company or any of its Subsidiaries shall at any time or
from time to time make or agree to make a Disposition, then (i) the Company
shall promptly notify the Agent of such proposed Disposition (including the
amount of the estimated Net Proceeds to be received by the Company in
respect thereof) and (ii) promptly upon receipt by the Company or its
Subsidiary of the Net Proceeds of such Disposition, the Company shall
prepay Loans in an aggregate amount equal to the amount of such Net
Proceeds.
(e) If the Company shall obtain, or shall cause Summer Street to
obtain, a mortgage on the Headquarters Building or any other type of
financing in accordance with the provisions of Section 7.14(c), the Company
shall promptly notify the Agent of the estimated Net Proceeds of such
mortgage or other type of financing to be received by the Company or Summer
Street in respect thereof. Promptly upon receipt by the Company or Summer
Street of the Net Proceeds of such mortgage or other type of financing, the
Company shall prepay the Loans in an aggregate amount equal to the amount
of such Net Proceeds.
(f) Simultaneously with each prepayment of a Loan, the Company shall
prepay all accrued interest on the amount prepaid through the date of
prepayment. Unless otherwise specified by the Company each prepayment of
Revolving Loans shall first be applied to Base Rate Loans then outstanding,
then to Offshore Rate Loans with the shortest Interest Periods remaining.
Unless otherwise specified, all non-mandatory prepayments of Revolving
Loans shall be applied first to Revolving Loans in accordance with the
preceding sentence. If any prepayment is made in respect of any Offshore
Rate Loans, in whole or in part, prior to the last day of the applicable
Interest Period, the Company agrees to indemnify the Banks in accordance
with Section 4.04.
(g) Upon consummation of any issuance of Subordinated Debt, a pro rata
portion of the Combined Commitments equal to the amount of Net Issuance
Proceeds of such issuance of Subordinated Debt shall be permanently reduced
by an amount equal to the sum of such Net Issuance Proceeds.
(h) Upon the making of any mandatory prepayment under this Section
2.07(d) or (e), the Revolving Loan Commitment Sublimit (and concurrently
therewith the Commitments) of each Bank shall automatically be reduced by
an amount equal to such Bank's ratable share of the aggregate of principal
repaid, effective as of the earlier of the date that such prepayment is
made or the date by which such prepayment is due and payable hereunder and
any excess thereof shall be applied to cash collateralize any outstanding
Letters of Credit. All accrued commitment fees to, but not including the
effective date of any reduction or termination of Commitments, shall be
paid on the effective date of such reduction or termination.
2.08 Repayment. The Company, with respect to the Revolving Loans made to
it, shall repay to the Banks on the Termination Date the aggregate principal
amount of the Revolving Loans outstanding on such date; provided, however,
notwithstanding anything contained herein to the contrary, on or prior to the
Termination Date, the Company shall be required to replace or refinance (or
cause to be replaced or refinanced) any Letter of Credit that has an expiry date
which is a date later than the Termination Date.
2.09 Interest.
(a) Each Revolving Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per
annum equal to the Offshore Rate or the Base Rate, as the case may be (and
subject to the Company's right to convert to other Types of Loans under
Section 2.04), plus the Applicable Margin.
(b) Interest on each Revolving Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Loans under Section 2.06 or 2.07 for the portion of the Loans
so prepaid and upon payment (including prepayment) in full thereof and,
during the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the Majority
Banks.
(c) Notwithstanding clause (a) of this Section 2.09, while any Event
of Default exists or after acceleration of any of the Obligations
hereunder, the Company shall pay interest (after, as well as before, entry
of judgment thereon to the extent permitted by law) on the principal amount
of all outstanding Loans, at a rate per annum which is determined by adding
2% per annum to the Applicable Margin then in effect for such Loans and, in
the case of Obligations not subject to an Applicable Margin, at a rate per
annum which is determined by adding 2% per annum to the Base Rate (the
"Default Rate"); provided, however, that, on and after the expiration of
any Interest Period applicable to any Offshore Rate Loan outstanding on the
date of occurrence of such Event of Default or acceleration, the principal
amount of such Loan shall, during the continuation of such Event of Default
or after acceleration, bear interest at a rate per annum which is
determined by adding 2% per annum to the Base Rate.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Bank hereunder shall be subject to the limitation
that payments of interest shall not be required for any period for which
interest is computed hereunder, to the extent (but only to the extent) that
contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate
of interest that may be lawfully contracted for, charged or received by
such Bank, and in such event the Company shall pay such Bank interest at
the highest rate permitted by applicable law.
2.10 Fees. In addition to certain fees described in Section 3.08:
(a) Arrangement, Agency, Upfront Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, shall pay
an agency fee to the Agent for the Agent's own account, and shall pay an
upfront fee to the Agent for the account of each Bank, as required by the
letter agreement ("Fee Letter") among the Company, the Arranger and Bank of
America dated April 29, 1999.
(b) Facility Fees. The Company shall pay to the Agent for the account
of each Bank, commitment fees based upon such Bank's Commitment computed on
a quarterly basis in arrears on the last Business Day of each calendar
quarter equal to the Applicable Facility Fee Rate. Such commitment fee
shall accrue from the Closing Date to the Termination Date, shall be due
and payable quarterly in arrears on the last Business Day of the last day
of each calendar year quarter commencing on September 30, 1999 through the
Termination Date, with the final payment to be made on the Termination
Date; provided, that, in connection with any reduction or termination of
the Commitment under Section 2.05 or Section 2.07, the accrued commitment
fee calculated for the period ending on such date shall also be paid on the
date of such reduction or termination, with the following quarterly payment
being calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The commitment fees
provided in this Section shall accrue at all times after the
above-mentioned commencement date, including at any time during which one
or more conditions in Article V are not met.
2.11 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by Bank of America's "reference rate" shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more
interest being paid than if computed on the basis of a 365-day year).
Interest and fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate and any fees referenced in
Section 2.10 by the Agent shall be conclusive and binding on the Company
and the Banks in the absence of manifest error. The Agent will, at the
request of the Company or any Bank, deliver to the Company or such Bank, as
the case may be, a statement showing the quotations used by the Agent in
determining any interest rate and the resulting interest rate.
(c) The Agent will, with reasonable promptness, notify the Company and
the Banks of each determination of an Offshore Rate; provided that any
failure to do so shall not relieve the Company of any liability hereunder
or provide the basis for any claim against the Agent.
(d) If the Reference Bank's Commitment terminates (other than on
termination of all the Commitments), or for any reason whatsoever the
Reference Bank ceases to be a Bank hereunder, the Reference Bank shall
thereupon cease to be a Reference Bank, and the Offshore Rate shall be
determined on the basis of the rates as notified by the Required Banks.
2.12 Payments by the Company.
(a) All payments to be made by the Company shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Company shall be made to the Agent for the
account of the Banks at the Agent's Payment Office, and shall be made in
Dollars and in immediately available funds, no later than 11:00 a.m. (San
Francisco time) on the date specified herein. The Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Agent later than 11:00 a.m. (San Francisco time)
shall be deemed to have been received on the following Business Day and any
applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Banks that the Company will not
make such payment in full as and when required, the Agent may assume that
the Company has made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Bank on
such due date an amount equal to the amount then due such Bank. If and to
the extent the Company has not made such payment in full to the Agent, each
Bank shall repay to the Agent on demand such amount distributed to such
Bank, together with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Bank until the date
repaid.
2.13 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at
least one (1) Business Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to the Agent
for the account of the Company the amount of that Bank's Pro Rata Share of
the Borrowing, the Agent may assume that each Bank has made such amount
available to the Agent in immediately available funds on the Borrowing Date
and the Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds as and when required
and the Agent in such circumstances has made available to the Company such
amount, that Bank shall on the Business Day following such Borrowing Date
make such amount available to the Agent, together with interest at the
Federal Funds Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this Section
2.13(a) shall be conclusive, absent manifest error. If such amount is so
made available, such payment to the Agent shall constitute such Bank's Loan
on the date of Borrowing for all purposes of this Agreement. If such amount
is not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure to fund
and, upon demand by the Agent, the Company shall pay such amount to the
Agent for the Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such
Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing Date
shall not relieve any other Bank of any obligation hereunder to make a Loan
on such Borrowing Date, but no Bank shall be responsible for the failure of
any other Bank to make the Loan to be made by such other Bank on any
Borrowing Date.
2.14 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Loans made by them as shall be necessary to cause such purchasing Bank to share
the excess payment pro rata with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price paid therefor, together with an
amount equal to such paying Bank's ratable share (according to the proportion of
(i) the amount of such paying Bank's required repayment to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Company agrees that any Bank so purchasing a participation from another Bank
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.10) with respect to
such participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Banks following any such purchases or repayments.
2.15 Security and Guaranty.
(a) All obligations of the Company under this Agreement, the Notes and
all other Loan Documents shall be secured in accordance with the Collateral
Documents.
(b) All obligations of the Company under this Agreement, each of the
Notes and all other Loan Documents shall be unconditionally guaranteed by
the Guarantors and any Additional Guarantor pursuant to the Guaranty.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Facility. (a) Subject to all of the terms and
conditions hereof, the Combined Commitments (subject to the limitation of the
L/C Commitment) may be availed by the Company in the form of Letters of Credit.
On the terms and conditions set forth herein (i) the Issuing Bank agrees, (A)
from time to time on any Business Day during the period from the Closing Date to
the Termination Date to issue Letters of Credit payable in Dollars or in an
Offshore Currency for the account of the Company, and to amend or renew Letters
of Credit previously issued by it, in accordance with Sections 3.02(c) and
3.02(d), and (B) to honor drafts under the Letters of Credit; and (ii) the Banks
severally agree to participate in Letters of Credit Issued for the account of
the Company; provided, that the Issuing Bank shall not be obligated to Issue,
and no Bank shall be obligated to participate in, any Letter of Credit if as of
the date of Issuance of such Letter of Credit (the "Issuance Date") (1) the
Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations plus the
Effective Amount of all Revolving Loans exceeds the Combined Commitments, (2)
the Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations
exceeds the L/C Commitment, (3) the participation of any Bank in the Effective
Amount of the U.S. Dollar Equivalent of all L/C Obligations plus the Effective
Amount of the Revolving Loans of such Bank exceeds such Bank's Commitment, or
(4) the Effective Amount of the U.S. Dollar Equivalent of L/C Obligations for
Financial Letters of Credit exceeds $15,000,000. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and, accordingly, the Company
may, during the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
(b) The Issuing Bank is under no 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
Issuing Bank from Issuing such Letter of Credit, or any Requirement of
Law applicable to the Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Bank shall prohibit, or
request that the Issuing Bank refrain from, the Issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Bank any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and
which the Issuing Bank in good faith deems material to it;
(ii) the Issuing Bank has received written notice from any Bank,
the Agent or the Company, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one or more
of the applicable conditions contained in Article V is not then
satisfied;
(iii) the expiry date of any requested Letter of Credit is a date
later than the third (3rd) anniversary of the Closing Date; provided
that, on or prior to the Termination Date, the Company is required to
replace or refinance any such Letter of Credit that has an expiry date
which is a date later than the Termination Date; or
(iv) any requested Letter of Credit does not provide for drafts,
or is not otherwise in form and substance acceptable to the Issuing
Bank, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuing Bank.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least three (3) Business Days (or such shorter
time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately
in an original writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to the Issuing Bank: (i) the
proposed date of issuance of the Letter of Credit (which shall be a
Business Day); (ii) the face amount of the Letter of Credit (including
whether such Letter of Credit shall be payable in Dollars or in an Offshore
Currency); (iii) the expiry date of the Letter of Credit; (iv) the name and
address of the beneficiary thereof; (v) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the beneficiary in
case of any drawing thereunder; and (vii) such other matters as the Issuing
Bank may require.
(b) At least two (2) Business Days prior to the Issuance of any Letter
of Credit, the Issuing Bank will confirm with the Agent (by telephone or in
writing) that the Agent has received a copy of the L/C Application or L/C
Amendment Application from the Company and, if not, the Issuing Bank will
provide the Agent with a copy thereof. Unless the Issuing Bank has received
notice on or before the Business Day immediately preceding the date the
Issuing Bank is to issue a requested Letter of Credit from the Agent (A)
directing the Issuing Bank not to issue such Letter of Credit because such
issuance is not then permitted under Section 3.01(a) as a result of the
limitations set forth in clauses (1) through (3) thereof or Section
3.01(b)(ii); or (B) that one or more conditions specified in Article V are
not then satisfied; then, subject to the terms and conditions hereof, the
Issuing Bank shall, on the requested date, issue a Letter of Credit for the
account of the Company, in accordance with the Issuing Bank's usual and
customary business practices. Upon the Issuance of any Letter of Credit,
the Issuing Bank shall promptly notify the Agent, and the Agent shall
thereafter promptly give telephone, telex or telecopy notice to each of the
other Banks of the Issuance of such Letters of Credit specifying the
effective date of the Letter of Credit or amendment, the amount, the
beneficiary and the expiration date of the Letter of Credit, in each case
as established originally or through the relevant amendment, as applicable,
each Bank's Pro Rata Share in such Letter of Credit, and whether the
Issuing Bank has classified the Letter of Credit as a Financial Letter of
Credit or a Non-Financial Letter of Credit for regulatory reporting
purposes.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Termination Date, the Issuing Bank will, upon the written
request of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least three (3) Business Days (or such shorter
time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any Letter of
Credit issued by it. Each such request for amendment of a Letter of Credit
shall be made by facsimile, confirmed immediately in an original writing,
made in the form of an L/C Amendment Application and shall specify in form
and detail satisfactory to the Issuing Bank: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and
(iv) such other matters as the Issuing Bank may require. The Issuing Bank
shall be under no obligation to amend any Letter of Credit if: (A) the
Issuing Bank would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms of this Agreement; or (B) the
beneficiary of any such letter of Credit does not accept the proposed
amendment to the Letter of Credit. The Agent will promptly notify the Banks
of the receipt by it of any L/C Application or L/C Amendment Application.
(d) The Issuing Bank and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Termination Date, at the option of
the Company, and upon the written request of the Company received by the
Issuing Bank (with a copy sent by the Company to the Agent) at least three
(3) days (or such shorter time as the Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed date of
notification of renewal, the Issuing Bank shall be entitled to authorize
the renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment
Application, and shall specify in form and detail satisfactory to the
Issuing Bank: (i) the Letter of Credit to be renewed; (ii) the proposed
date of notification of renewal of the Letter of Credit (which shall be a
Business Day); (iii) the revised expiry date of the Letter of Credit; and
(iv) such other matters as the Issuing Bank may require. The Issuing Bank
shall be under no obligation so to renew any Letter of Credit if: (A) the
Issuing Bank would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does not accept the
proposed renewal of the Letter of Credit. If any outstanding Letter of
Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that such Letter
of Credit shall not be renewed, and if at the time of renewal the Issuing
Bank would be entitled to authorize the automatic renewal of such Letter of
Credit in accordance with this Section 3.02(d) upon the request of the
Company, but the Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such renewal or other written
direction by the Company with respect thereto, the Issuing Bank shall
nonetheless be permitted to allow such Letter of Credit to renew, and the
Company and the Banks hereby authorize such renewal, and, accordingly, the
Issuing Bank shall be deemed to have received an L/C Amendment Application
from the Company requesting such renewal.
(e) The Issuing Bank may, at its election (or as required by the Agent
at the direction of the Majority Banks), deliver any notices of termination
or other communications to any Letter of Credit beneficiary or transferee,
and take any other action as necessary or appropriate, at any time and from
time to time, in order to cause the expiry date of such Letter of Credit to
be a date not later than the Termination Date, subject to the provisions of
Section 3.01(b)(iii).
(f) This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent, concurrently or
promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true
and complete copy of each such Letter of Credit or amendment to or renewal
of a Letter of Credit.
3.03 Existing Letters of Credit; Risk Participations, Drawings and
Reimbursements.
(a) On and after the Closing Date, the Existing Letters of Credit
shall be deemed for all purposes, including for purposes of the fees to be
collected pursuant to Sections 3.08(a) and 3.08(c), and reimbursement of
costs and expenses to the extent provided herein, Letters of Credit
outstanding under this Agreement and entitled to the benefits of this
Agreement and the other Loan Documents, and shall be governed by the
applications and agreements pertaining thereto and by this Agreement. Each
Bank shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Issuing Bank on the Closing Date a participation in
each such Letter of Credit and each drawing thereunder in an amount equal
to the product of (i) such Bank's Pro Rata Share times (ii) the maximum
amount available to be drawn under such Letter of Credit and the amount of
such drawing, respectively. For purposes of Section 2.01 and Section
2.10(b), the Existing Letters of Credit shall be deemed to utilize pro rata
the Commitment of each Bank.
(b) Immediately upon the Issuance of each Letter of Credit in addition
to those described in Section 3.03(a), each Bank shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Bank a participation in such Letter of Credit and each drawing thereunder
in an amount equal to the product of (i) the Pro Rata Share of such Bank,
times (ii) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. For purposes of
Section 2.01(b), each Issuance of a Letter of Credit shall be deemed to
utilize the Commitment of each Bank by an amount equal to the amount of
such participation.
(c) In the event of any request for a drawing under a Letter of Credit
by the beneficiary or transferee thereof, the Issuing Bank will promptly
notify the Company. The obligation of the Company to reimburse the Issuing
Bank for all drawings under a Letter of Credit issued hereunder shall be
governed by the L/C Application related to such Letter of Credit, except
that (i) the reimbursement by the Company of draws made under a Letter of
Credit denominated in Dollars shall be made in Dollars, (ii) the
reimbursement by the Company of draws made under a Letter of Credit
denominated in an Offshore Currency shall be made by payment in Dollars of
the U.S. Dollar Equivalent thereof, calculated for the date on which the
Issuing Bank paid such draw, of the amount paid by the Issuing Bank
pursuant to such draw, or, if the Issuing Bank shall elect by notice to the
Company and the Agent, by payment in the Offshore Currency which was paid
by the Issuing Bank pursuant to such drawing in an amount equal to such
drawing, and (iii) reimbursement in Dollars of a drawing paid shall be made
to the Issuing Bank (with notice to the Agent) by no later than 10:00 A.M.
(San Francisco time) on the date when such drawing is paid and
reimbursement in an Offshore Currency of a drawing paid shall be made to
the Issuing Bank (with notice to the Agent) by no later than 1:00 p.m.
local time at the place of payment or, if earlier, such local time as is
necessary for such funds to be received and transferred to the Issuing Bank
for same day value on the day such obligation is due (each such date, an
"Honor Date"); and any payment of a reimbursement obligation relating to a
Letter of Credit received after such time shall be deemed to have been
received by the Issuing Bank on the next Business Day. Prior to the
Termination Date, in the event the Company fails to reimburse the Issuing
Bank for the full amount of any drawing under any Letter of Credit by the
above-referenced times on the Honor Date, the Issuing Bank will promptly
notify the Agent and the Agent will promptly notify each Bank thereof, and
the Company shall be deemed to have requested that Base Rate Loans in an
amount equal to the U.S. Dollar Equivalent paid by the Issuing Bank to the
beneficiary pursuant to such drawn Letter of Credit be made by the Banks to
be disbursed on the Honor Date under such Letter of Credit, subject to the
amount of the unutilized portion of the Revolving Loan Commitment Sublimit
and subject to the conditions set forth in Section 5.02. Any notice given
by the Issuing Bank or the Agent pursuant to this Section 3.03(c) may be
oral if immediately confirmed in writing (including by facsimile); provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(d) Each Bank shall upon any notice pursuant to Section 3.03(c) make
available to the Agent for the account of the relevant Issuing Bank (i) in
the case of a reimbursement obligation payable in Dollars, an amount equal
to such Bank's Pro Rata Share of such unpaid reimbursement obligation, such
payment to be made in lawful money in the United States, in immediately
available funds; and (ii) in the case of a reimbursement obligation payable
in an Offshore Currency, an amount equal to such Bank's Pro Rata Share of
such unpaid reimbursement obligation, such payment to be made in the U.S.
Dollar Equivalent of such Offshore Currency as then determined by the
Issuing Bank, whereupon the participating Banks shall (subject to Section
3.03(e)) each be deemed to have made a Revolving Loan consisting of a Base
Rate Loan to the Company in that amount. If any Bank so notified fails to
make available to the Agent for the account of the Issuing Bank the amount
of such Bank's Pro Rata Share of the amount of the drawing by no later than
12:00 noon (San Francisco time) on the Honor Date, then interest shall
accrue on such Bank's obligation to make such payment, from the Honor Date
to the date such Bank makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such period with
respect to reimbursement obligations payable in Dollars and the U.S. Dollar
Equivalent of the Overnight Foreign Currency Rate in effect from time to
time during such period with respect to reimbursement Obligations payable
in any Offshore Currency. The Agent will promptly give notice of the
occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Bank to effect
such payment on such date shall not relieve such Bank from its obligations
under this Section 3.03.
(e) Subject to the provisions of Sections 2.08 and 3.01(b)(iii), with
respect to any unreimbursed drawing that is not converted into Revolving
Loans consisting of Base Rate Loans to the Company, in whole or in part,
because of the Company's failure to satisfy the conditions set forth in
Section 5.02, because of the termination of the Revolving Loan Commitment
Sublimit, or for any other reason, the Company shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the amount of such
drawing, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at a rate per annum equal to the
Base Rate plus 2% per annum, and each Bank's payment to the Issuing Bank
pursuant to Section 3.03(d) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Bank in satisfaction of its participation obligation under this
Section 3.03.
(f) Each Bank's obligation in accordance with this Agreement to make
the Revolving Loans or L/C Advances, as contemplated by this Section 3.03,
as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the
Issuing Bank, the Company or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default, an Event of Default or a
Material Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided,
however, that each Bank's obligation to make any Revolving Loans prior to
the Termination Date under this Section 3.03 is subject to the conditions
set forth in Section 5.02.
(g) Notwithstanding anything to the contrary set forth in this
Agreement, including Section 3.03(a), certain Existing Letters of Credit
have been issued for the account of a Subsidiary of the Company or may
contain a statement to the effect that such Letter of Credit is issued for
the account of a Subsidiary of the Company. Notwithstanding such issuance
or statement, the Company shall be the actual account party for all
purposes of the Loan Documents and the fact that a Subsidiary may be listed
as the account party shall not affect the Company's reimbursement
obligations hereunder with respect to such Existing Letter of Credit. In
furtherance and not in limitation of the preceding sentence, the Company
agrees to be jointly and severally liable with respect to any such Existing
Letter of Credit, and the Company hereby irrevocably, unconditionally
guarantees and promises to pay and perform on demand the reimbursement
obligations with respect to any such Existing Letter of Credit which has
been issued for the account of any such Subsidiary, including all
amendments, modifications, supplements, renewals or extensions of any such
Existing Letter of Credit, whether such amendments, modifications,
supplements, renewals or extensions are evidenced by new or additional
instruments, documents or agreements.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account of the
Issuing Bank of immediately available funds from the Company (i) in
reimbursement of any payment made by the Issuing Bank under the Letter of
Credit with respect to which any Bank has paid the Agent for the account of
the Issuing Bank for such Bank's participation in the Letter of Credit
pursuant to Section 3.03 or (ii) in payment of interest thereon, the Agent
will pay to each Bank, in the same funds as those received by the Agent for
the account of the Issuing Bank, the amount of such Bank's Pro Rata Share
of such funds, and the Issuing Bank shall receive the amount of the Pro
Rata Share of such funds of any Bank that did not so pay the Agent for the
account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time to return
to the Company, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by
the Company to the Agent for the account of the Issuing Bank pursuant to
Section 3.04(a) in reimbursement of a payment made under the Letter of
Credit or interest or fee thereon, each Bank shall, on demand of the Agent,
forthwith return to the Agent or the Issuing Bank the amount of its Pro
Rata Share of any amounts so returned by the Agent or the Issuing Bank plus
interest thereon from the date such demand is made to the date such amounts
are returned by such Bank to the Agent or the Issuing Bank, at a rate per
annum equal to the Federal Funds Rate in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Company agree that, in paying any drawing under
a Letter of Credit, the Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document.
(b) No Affiliate, officers, directors, employees, agents,
attorneys-in-fact or any of the respective correspondents, participants or
assignees of the Issuing Bank shall be liable to any Bank for: (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Banks (including the Majority Banks, as applicable); (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Company's pursuit of such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Affiliate, officers, directors, employees, agents,
attorneys-in-fact, any of the respective correspondents, participants or
assignees of the Issuing Bank, shall be liable or responsible for any of
the matters described in clauses (i) through (vii) of Section 3.06 or in
clauses (i) and (ii) of this Section 3.05(c); provided, however, anything
in such clauses to the contrary notwithstanding, that the Company may have
a claim against the Issuing Bank, and the Issuing Bank may be liable to the
Company to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the
Company proves were caused by the Issuing Bank's willful misconduct or
gross negligence or the Issuing Bank's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) the Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the
Issuing Bank shall not be responsible for the validity or sufficiency 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.
3.06 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related Documents or
any unrelated transaction;
(iv) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by
the Issuing Bank under any Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any other guarantee, for all or any of the obligations of the Company
in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Company or a guarantor.
3.07 Cash Collateral Pledge. Upon (i) the request of the Agent, (A) if the
Issuing Bank has honored any full or partial drawing request on any Letter of
Credit and such drawing has resulted in an L/C Borrowing hereunder, or (B)
subject to the provisions of Sections 2.08 and 3.01(b)(iii), if, as of the
Termination Date, any Letters of Credit may for any reason remain outstanding
and partially or wholly undrawn, or (ii) the occurrence of the circumstances
described in Section 2.07(a) requiring the Company to Cash Collateralize Letters
of Credit, then, the Company shall immediately Cash Collateralize the L/C
Obligations in an amount equal to L/C Obligations.
3.08 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of each of the
Banks a letter of credit fee with respect to the Letters of Credit equal to
(i) the Applicable Margin with respect to Offshore Rate Loans in the case
of Financial Letters of Credit and (ii) fifty percent (50%) of the
Applicable Margin with respect to Offshore Rate Loans in the case of
Non-Financial Letters of Credit on a per annum basis of the U.S. Dollar
Equivalent on the average daily maximum amount available to be drawn of the
outstanding Letters of Credit, computed on a quarterly basis in arrears on
the last Business Day of each calendar quarter based upon Letters of Credit
outstanding for that quarter as calculated by the Agent. Such letter of
credit fees shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of Credit are
outstanding, commencing on the first such quarterly date to occur after the
Closing Date, through the Termination Date (or such later date upon which
the outstanding Letters of Credit shall expire), with the final payment to
be made on the Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Bank a letter of credit
fronting fee for each Letter of Credit Issued by the Issuing Bank equal to
0.125% of the U.S. Dollar Equivalent of the face amount (or increased face
amount, as the case may be) of such Letter of Credit. Such Letter of Credit
fronting fee shall be due and payable on each date of Issuance of a Letter
of Credit.
(c) The Company shall pay to the Issuing Bank from time to time on
demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Bank relating to
letters of credit as from time to time in effect.
3.09 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters of Credit.
3.10 Currency Determinations. The Issuing Bank shall determine the U.S.
Dollar Equivalent of each Letter of Credit and each obligation due with respect
thereto, and a determination thereof by the Issuing Bank shall be conclusive and
binding except in the case of manifest error. The U.S. Dollar Equivalent of each
reimbursement obligation with respect to a Letter of Credit drawn upon shall be
calculated for the date on which the Issuing Bank pays on the drawing giving
rise to such reimbursement obligation. The U.S. Dollar Equivalent of each Letter
of Credit shall be determined or redetermined, as applicable, on the date of
issuance, increase or extension of such Letter of Credit and on the first day of
each month thereafter, and each Issuing Bank shall promptly notify the Agent of
the determination thereof. At the request of any Bank, the Issuing Bank shall
redetermine the U.S. Dollar Equivalent of any Letter of Credit at such times,
and from time to time, as may be reasonably requested.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Any and all payments by the Company to each Bank or the Agent
under this Agreement and any other Loan Document shall be made free and
clear of, and without deduction or withholding for, any Taxes. In addition,
the Company shall pay all Other Taxes.
(b) Subject to subsections 4.01(f) and (g) below, if the Company shall
be required by law to deduct or withhold any Taxes or Other Taxes from or
in respect of any sum payable hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable
under this Section), such Bank or the Agent, as the case may be,
receives and retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law.
(c) The Company agrees to indemnify and hold harmless each Bank and
the Agent for the full amount of i) Taxes and ii) Other Taxes in the amount
that the respective Bank specifies as necessary to preserve the after-tax
yield the Bank would have received if such Taxes or Other Taxes had not
been imposed, and any liability (including penalties, interest, additions
to tax and expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within thirty (30) days after the
date the Bank or the Agent makes written demand therefor.
(d) Within thirty (30) days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish to each Bank or
the Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Bank or the
Agent.
(e) If the Company is required to pay any amount to any Bank or the
Agent pursuant to Section (b) or (c) of this Section 4.01, then such Bank
shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the sole judgment of such Bank is not otherwise
disadvantageous to such Bank.
(f) Notwithstanding anything herein to the contrary in Section 10.10
and in furtherance of such Section, each Bank organized under the laws of a
jurisdiction outside the United States, before it signs and delivers this
Agreement in the case of each Bank listed on the signature pages hereof and
before it becomes a Bank in the case of each other Bank, and from time to
time thereafter (unless such Bank can no longer do so due to a change in
treaty, law or regulation), before the date that any such form expires or
becomes obsolete or invalid, shall provide each of the Company and the
Agent with IRS from 1001 or 4224 in duplicate, as appropriate, or any
successor form prescribed by the IRS, certifying that such Bank is entitled
to benefits under an income tax treaty to which the United States is a
party which exempts the Bank from United States withholding tax on payments
of interest for the account of such Bank or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of such Bank's trade or business in the United States and exempt
from United States withholding tax. Each such Bank that so delivers a form
1001 or 4224 (or applicable successor forms) agrees to deliver to the
Company undated or modified forms, or other manner of certification
acceptable to the Company, at any time that any such form is required to be
resubmitted or modified, as a result of any action taken by Bank, as a
condition to obtaining an exemption from withholding tax. In addition, each
Bank that so delivers a form 1001 shall thereby be deemed to have made a
representation to the effect that the fees to be received by such Bank
pursuant to this Agreement will not be received in connection with the
active conduct of a trade or business in the United States by such Bank.
(g) For any period with respect to which a Bank has failed to provide
the Company and the Agent with the appropriate form referred to in Section
4.01(f) (whether or not such Bank is lawfully able to do so, unless such
failure is due to a change in treaty, law or regulation occurring after the
date on which such form originally was required to be provided), such Bank
shall not be entitled to any additional payment under Section 4.01(b) or
any indemnification under Section 4.01(c); provided, that if such Bank
shall have satisfied such requirements on the Closing Date (in the case of
each Bank listed on the signature pages hereof) or on the effective date of
the Assignment and Acceptance Agreement or other document pursuant to which
it became a Bank (in the case of each other Bank), nothing in this
subsection shall relieve the Company of its obligation to pay any
additional amounts pursuant to Section 4.01(b) or Section 4.01(c) in the
event that, as a result of any change in applicable law or treaty, such
Bank is no longer properly entitled to deliver certificates, documents or
other evidence at a subsequent date establishing the fact that such Bank is
entitled to such exemption or reduced rate.
4.02 Illegality.
(a) If any Bank determines that the introduction of any Requirement of
Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is
unlawful, for any Bank or its applicable Lending Office to make Offshore
Rate Loans, then, on notice thereof by the Bank to the Company through the
Agent, any obligation of that Bank to make Offshore Rate Loans shall be
suspended until the Bank notifies the Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any Offshore
Rate Loan, the Company shall, prepay in full such Offshore Rate Loans of
that Bank then outstanding, together with interest accrued thereon and
amounts required under Section 4.04, either on the last day of the Interest
Period thereof, if the Bank may lawfully continue to maintain such Offshore
Rate Loans to such day, or immediately, if the Bank may not lawfully
continue to maintain such Offshore Rate Loan.
(c) If the Company is required to prepay any Offshore Rate Loan
immediately as provided in Section 4.02(b), then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount
of such repayment, a Base Rate Loan.
(d) Before giving any notice to the Agent under this Section, the
affected Bank shall designate a different Lending Office with respect to
its Offshore Rate Loans if such designation will avoid the need for giving
such notice or making such demand and will not, in the sole judgment of the
Bank, be illegal or otherwise disadvantageous to the Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank determines after the Closing Date that, due to either
(i) the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance by that Bank with any guideline or
request from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to
such Bank of agreeing to make or making, funding or maintaining any
Offshore Rate Loans or participating in Letters of Credit, or, in the case
of the Issuing Bank, any increase in the cost to the Issuing Bank of
agreeing to issue, issuing or maintaining any Letter of Credit or of
agreeing to make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then the Company shall be liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the
Agent), pay to the Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined after the Closing Date that (i)
the introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Bank (or its Lending
Office) or any corporation controlling the Bank with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the
Bank and (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitments, loans, credits or obligations under this
Agreement, then, upon demand of such Bank to the Company through the Agent,
the Company shall pay to the Bank, from time to time as specified by the
Bank, additional amounts sufficient to compensate the Bank for such
increase.
4.04 Funding Losses. The Company shall reimburse each Bank and hold each
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a Loan
after the Company have given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in accordance
with any notice delivered under Section 2.06;
(d) the prepayment (including pursuant to Section 2.07) or other
payment (including after acceleration thereof) of an Offshore Rate Loan on
a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any Offshore Rate
Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period; including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain its
Offshore Rate Loans or from fees payable to terminate the deposits from
which such funds were obtained or from charges relating to the issuance of
any Letter of Credit in an Offshore Currency. For purposes of calculating
amounts payable by the Company to the Banks under this Section and under
Section 4.03(a), each Offshore Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the Offshore Rate for such Offshore Rate Loan
by a matching deposit or other borrowing in the interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Offshore Rate Loan is in fact so funded.
4.05 Inability to Determine Rates. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to Section 2.09(a) for any
requested Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to the Banks of funding such Loan, the
Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent, upon the instruction of the Majority Banks,
revokes such notice in writing. Upon receipt of such notice, any of the Company
may revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Banks shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Loans instead of Offshore
Rate Loans.
4.06 Reserves on Offshore Rate Loans. The Company shall pay to each Bank,
as long as such Bank shall be required under regulations of the FRB to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as "Eurocurrency liabilities"),
additional costs on the unpaid principal amount of each Offshore Rate Loan equal
to the actual costs of such reserves allocated to such Loan by the Bank (as
determined by the Bank in good faith, which determination shall be conclusive),
payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least 15 days' prior written notice (with a copy
to the Agent) of such additional interest from the Bank. If a Bank fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be payable 15 days from receipt of such notice.
4.07 Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article IV shall deliver to the Company (with a copy to the Agent) a
certificate setting forth in reasonable detail the amount payable to the Bank
hereunder and such certificate shall be conclusive and binding on the Company in
the absence of manifest error.
4.08 Substitution of Banks. Upon the receipt by the Company from any Bank
(an "Affected Bank") of a claim for compensation under Section 4.03, the Company
may: (i) request the Affected Bank to use its best efforts to obtain a
replacement bank or financial institution satisfactory to the Company to acquire
and assume all or a ratable part of all of such Affected Bank's Loans and
Commitment (a "Replacement Bank"); (ii) request one more of the other Banks to
acquire and assume all or part of such Affected Bank's Loans and Commitment; or
(iii) designate a Replacement Bank. Any such designation of a Replacement Bank
under clause (i) or (iii) shall be subject to the prior written consent of the
Agent (which consent shall not be unreasonably withheld).
4.09 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
4.10 Increase in Commitments. Subject to Section 8.18, the Company may
request that the Combined Commitments hereunder be increased in an amount up to
$15,000,000 in the aggregate (such that the Combined Commitments hereunder shall
be an amount not in excess of $245,000,000) by offering such increase to one or
more banks or other financial institutions (each such bank or financial
institution being hereinafter referred to as an "Additional Bank") selected by
the Company and acceptable to the Arranger and the Agent. Notwithstanding
anything herein to the contrary, the Company may further request that the
Combined Commitments hereunder be further increased by an additional $10,000,000
in the aggregate (such that the Combined Commitments hereunder shall be an
amount not in excess of $255,000,000), so long as the Company obtains the prior
consent of the Agent and each of the Banks. Such increase in the Commitments
shall also be subject to the satisfaction of the following conditions: (a) each
such increase shall be at least $10,000,000 or such greater amount which is an
integral multiple of $1,000,000; (b) the Agent shall have received an
acknowledgment agreement providing for such increase in form and substance
satisfactory to it executed by the Company, the Agent, and the relevant
Additional Bank, and (c) the Agent shall have received a Note duly executed by
the Company in favor of the relevant Additional Bank. Upon the satisfaction of
such conditions, effective as of the date set forth above in such acknowledgment
agreement, each such Additional Bank shall thereafter be a "Bank" party to this
Agreement and shall be entitled to all rights, benefits and privileges afforded
a Bank hereunder and subject to the obligations of a Bank hereunder to the
extent of its Commitment and Schedule 2.01 shall be deemed amended reflecting
the increase in the aggregate Commitments caused by the inclusion of the
Commitment of the Additional Bank. Concurrently with the effectiveness of such
increase, each Additional Bank shall fund its percentage of the outstanding
Loans and overdue reimbursement obligations with respect to Letters of Credit,
if any, to the Agent so that after giving effect thereto each Bank, including
the Additional Bank, holds a Pro Rata Share (in accordance with its Commitment
percentage) of the outstanding Loans and credit risks with respect to Letters of
Credit, and the Company shall pay to each Bank all amounts due under Section
4.04 hereof as a result of any prepayment of any outstanding Offshore Rate Loan.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions. The obligation of each Bank
to make its initial Credit Extension hereunder is subject to the condition that
the Agent shall have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Agent, the Arranger and
each Bank, and (except for instruments or documents representing Pledged
Collateral) in sufficient copies for each Bank:
(a) Credit Agreement; Loan Documents and Notes.
(i) This Agreement, the Notes, the Intercreditor Agreement and
the Collateral Documents executed by each party thereto;
(ii) Evidence that each of the Pledge Agreements has been duly
authorized by all necessary corporate action and has been duly
executed and delivered by the parties thereto. Evidence that all of
the Pledged Shares and/or Pledged Instruments (as each term is defined
in each Pledge Agreement) have been delivered to the Agent,
accompanied, if applicable, by stock powers duly executed in blank by
such pledgor pursuant to the Pledge Agreements; and
(iii) Evidence that the other Collateral Documents have been duly
authorized by necessary corporate action. Evidence that each Person
party to a Collateral Document has duly executed and delivered each
Collateral Document;
(b) Collateral Documents. The Collateral Documents, executed by the
Company and each Subsidiary party to each such Collateral Document, in
appropriate form for recording, where necessary, together with:
(i) copies of all UCC-l financing statements to be filed,
registered or recorded in order to perfect the security interests of
the Collateral Agent for the benefit of the Banks and the other Senior
Secured Lenders, or other evidence satisfactory to the Agent that
there shall be filed, registered or recorded all financing statements
and other filings, registrations and recordings necessary and
advisable to perfect the Liens of the Collateral Agent for the benefit
of the Banks and the other Senior Secured Lenders in accordance with
applicable law;
(ii) written advice relating to such Lien and judgment searches
as the Agent shall have requested of the Company, and such termination
statements or other documents as may be necessary to confirm that the
Collateral is subject to no other Liens in favor of any Persons (other
than Permitted Liens);
(iii) [Intentionally Omitted];
(iv) with respect to the Mortgaged Property, an A.L.T.A. form B
(or other form acceptable to the Agent and the Banks) mortgagee policy
of title insurance or a binder issued by a title insurance company
satisfactory to the Agent and the Banks insuring (or undertaking to
insure, in the case of a binder) that the Mortgage creates and
constitutes a valid first Lien against the mortgaged Property in favor
of the Agent, subject only to exceptions acceptable to the Agent and
the Banks, with such endorsements and affirmative insurance as the
Agent or any Bank may reasonably request;
(v) [Intentionally Omitted];
(vi) to the extent paid at closing, proof of payment of all title
insurance premiums, documentary stamp or intangible taxes, recording
fees and mortgage taxes payable in connection with the recording of
any Mortgage or the issuance of the title insurance policies (whether
due on the Closing Date or in the future) including sums due in
connection with any future advances;
(vii) such consents, tenant estoppels, subordination agreements
and other documents and instruments executed by landlords, tenants and
other Persons party to material contracts relating to any Collateral
as to which the Collateral Agent shall be granted a Lien for the
benefit of the Banks and the other Senior Secured Lenders, as
requested by the Agent; and
(viii) evidence that all other actions necessary or, in the
reasonable opinion of the Agent or the Banks, desirable to perfect and
protect the first priority Lien created by the Collateral Documents,
and to enhance the Collateral Agent's ability to preserve and protect
its interests in and access to the Collateral, have been taken.
(c) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Company and each Subsidiary that may become party to a Loan Document
authorizing the transactions contemplated hereby, certified as of the
Closing Date by the Secretary or an Assistant Secretary of such
Person; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company, and each Subsidiary that may become party to a Loan Document
certifying the names and true signatures of the officers of the
Company or such Subsidiary authorized to execute, deliver and perform,
as applicable, this Agreement, and all other Loan Documents to be
delivered by it hereunder;
(d) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the bylaws
of the Company and each Subsidiary party to any Loan Document as in
effect on the Closing Date, certified by the Secretary or Assistant
Secretary of the Company or such Subsidiary as of the Closing Date;
and
(ii) a good standing and, to the extent available, tax good
standing certificate for the Company and each Subsidiary party to any
Loan Document from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation as of a recent
date, together with a bring-down certificate by facsimile, dated the
Closing Date;
(e) Legal Opinions. (i) An opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P., counsel to the Company and the other
Borrower Parties, addressed to the Agent and the Banks, substantially in
the form of Exhibit I-1; (ii) an opinion of James P. Jones, general counsel
to the Company and the other Borrower Parties, addressed to the Agent and
the Banks, substantially in the form of Exhibit I-2; and (iii) an opinion
of special local counsel to the Company and the other Borrower Parties for
each state in which any Collateral is located, addressed to the Agent and
the Banks, each substantially in the form of Exhibit I-3.
(f) Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on
the Closing Date, together with Attorney Costs of Bank of America to the
extent invoiced prior to or on the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute Bank of America's reasonable
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude final settling of accounts between the Company and Bank of
America); including any such costs, fees and expenses arising under or
referenced in Sections 2.10 and 11.04;
(g) Certificate. A certificate signed by a Responsible Officer of the
Company, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article VI
are true and correct on and as of such date, as though made on and as
of such date;
(ii) no Default or Event of Default exists or would result from
the Credit Extension;
(iii) any necessary consents, waivers, approvals, authorizations,
registrations, filings and notifications of the character referred to
in Section 6.03 have been obtained or made and are in full force and
effect; and
(iv) except as otherwise disclosed in the Projections and in any
filings with the SEC, there has occurred since March 31, 1999, no
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(h) Year 2000 Compliance. Evidence that (a) each of the Company and
its Subsidiaries has taken and is taking all necessary and appropriate
steps to ascertain the extent of, quantify and successfully address
business and financial risks facing the Company or its Subsidiaries, as the
case may be, as a result of what is commonly referred to as the "Year 2000
problem" (i.e., the inability of computers, as well as embedded microchips
in non-computing devices, to perform properly date-sensitive functions
involving certain dates prior to and after December 31, 1999) (hereinafter,
the "Year 2000 problem"), including risks resulting from the failure of key
customers and suppliers of the Company to address successfully the Year
2000 problem, (b) the Company and its Subsidiaries will on a timely basis
take adequate steps to avoid the Year 2000 problem in all material
respects, and (c) the Company's and its Subsidiaries' material computer
applications and those of its key vendors and customers will on a timely
basis, adequately address the Year 2000 problem in all material respects;
(i) Valuation. Copies of a preliminary valuation of the property owned
by Summer Street Realty Corporation located at 245 Summer Street, Boston,
Massachusetts (the "Headquarters Building") prepared by a Person in the
business of real estate appraisal satisfactory to each of the Agent, the
Arranger and each of the Banks;
(j) Insurance Policies. Standard lenders' payable endorsements with
respect to the insurance policies or other instruments or documents
evidencing insurance coverage on the Collateral in accordance with Section
6.17;
(k) Replacement of Prior Bank Agreements; Release of Liens. Except
with respect to the Existing Letters of Credit, evidence that the Company,
its Subsidiaries and the other parties to the Prior Bank Agreements and
their agents each have entered into such agreements or arrangements, and,
if applicable, have executed such termination statements or releases, as
shall be necessary to replace the Prior Bank Agreements, terminate any
guarantees of Indebtedness thereunder and terminate or release all Prior
Bank Liens, and copies of such replacements, terminations or releases;
(l) 121A Agreements. On or prior to the Closing Date, there shall have
been delivered to the Agent true, complete and correct copies, certified as
such by a Responsible Officer of the Company, of all 121A Agreements. Each
121A Agreement shall be in form and substance satisfactory to the Agent and
shall be in full force and effect on the Closing Date; and
(m) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may request.
5.02 Conditions to All Credit Extensions. The obligation of each Bank to
make any Revolving Loan to be made by it (including its initial Revolving Loan)
or to continue or convert any Revolving Loan under Section 2.04 and the
obligation of the Issuing Bank to Issue any Letter of Credit (including the
initial Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date, Conversion/Continuation
Date or Issuance Date:
(a) Notice, Application. The Agent shall have received (with, in the
case of the initial Revolving Loan only, a copy for each Bank) a Notice of
Borrowing or a Notice of Conversion/Continuation, as applicable or in the
case of any Issuance of any Letter of Credit, the Issuing Bank and the
Agent shall have received an L/C Application or L/C Amendment Application,
as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct on
and as of such Borrowing Date or Conversion/Continuation Date or Issuance
Date with the same effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Borrowing or continuation or conversion or Issuance.
Each Notice of Borrowing, Notice of Conversion/Continuation and L/C
Application or L/C Amendment Application submitted by the Company shall
constitute a representation and warranty by the Company, as of the date of
each such notice and as of each Borrowing Date, Conversion/Continuation
Date, or Issuance Date, as applicable, that the conditions in this Section
5.02 are satisfied.
5.03 Conditions for a Domestic Principal Subsidiary to Become a Guarantor.
As a condition precedent to a Domestic Principal Subsidiary becoming a guarantor
under the Guaranty in accordance with Section 7.13, the Bank shall have received
the following with respect to such Domestic Principal Subsidiary, in form and
substance satisfactory to the Agent and each Bank:
(a) The signed certificate of the President, an Executive Vice
President, or a Vice President and the Secretary or an Assistant Secretary
of such Domestic Principal Subsidiary, certifying as to (i) a true and
correct copy of resolutions adopted by the Board of Directors of such
Domestic Principal Subsidiary authorizing the execution, delivery and
performance by such Domestic Principal Subsidiary of each Loan Document and
all related certificates, notices, instruments and documents to which it
will be a party or will execute and deliver, (ii) a true and correct copy
of the articles or certificate of incorporation and by-laws of such
Domestic Principal Subsidiary certified by the Secretary of such Domestic
Principal Subsidiary as in effect on such date, and (iii) the incumbency
and specimen signatures of officers of such Domestic Principal Subsidiary
executing the Agreement, and any other documents delivered to the Agent in
connection with this Section 5.03 to which such Domestic Principal
Subsidiary will be a party;
(b) The opinion of the general counsel or assistant general counsel of
the Company (or such other counsel designated by the Company and acceptable
to the Agent) with respect to such Domestic Principal Subsidiary comparable
(with respect to such Domestic Principal Subsidiary) to the opinions
referenced in Section 5.01(e);
(c) Exhibit A to the Guaranty duly executed by such Domestic Principal
Subsidiary, whereby such Domestic Principal Subsidiary agrees to be bound
by the terms and conditions of the Guaranty.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.01 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the
Loan Documents, to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license; and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
6.02 Corporate Authorization; No Contravention. The execution, delivery and
performance by the Company and its Subsidiaries of this Agreement and each other
Loan Document to which such Person is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual
Obligation to which such Person is a party or any order, injunction, writ
or decree of any Governmental Authority to which such Person or its
property is subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization. Except as set forth on Schedule 6.03, no
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority (except for recordings or filings in
connection with the Liens granted to the Agent under the Collateral Documents)
is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company or any of its Subsidiaries
of this Agreement or any other Loan Document, to which such Person is a party.
6.04 Binding Effect. This Agreement and each other Loan Document to which
the Company or any of its Subsidiaries is a party constitute the legal, valid
and binding obligations of the Company and any of its Subsidiaries to the extent
it is a party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
6.05 Litigation. Except as specifically disclosed in Schedule 6.05, there
are no actions, suits, proceedings at law or in equity, claims, investigations
or disputes pending, or to the best knowledge of the Company, threatened, at
law, in equity, in arbitration or before any Governmental Authority, against the
Company, or its Subsidiaries or any of their respective properties:
(a) which purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or thereby;
or
(b) as to which there exists a substantial likelihood of an adverse
determination, which determination would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary restraining order
or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
6.06 No Default. No Default or Event of Default exists or would result from
the incurring of any Obligations by the Company or the grant or perfection of
the Agent's Liens on the Collateral. As of the Closing Date, neither the Company
nor any Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse Effect, or
that would, if such default had occurred after the Closing Date, create an Event
of Default under Section 9.01(e).
6.07 ERISA.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law.
Each Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application
for such a letter is currently being processed by the IRS with respect
thereto and, to the best knowledge of the Company, nothing has occurred
which would prevent, or cause the loss of, such qualification. The Company
and each ERISA Affiliate has made all required contributions to any Plan
subject to Section 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has a Material Adverse Effect.
There has been no Prohibited Transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither the Company nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c)
of ERISA, with respect to which, in the case of each event listed above,
has a Material Adverse Effect.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 7.12 and
Section 8.13. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.09 Title to Properties. The Company and each Subsidiary have good record
and marketable title in fee simple to, or valid leasehold interests in, all real
property and good title to, or a valid leasehold interest in, all its other
personal property, necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 Financial Condition.
(a) The audited consolidated financial statements of the Company and
its Subsidiaries dated December 31, 1998 and the related consolidated
statements of income or operations, shareholders' equity and cash flows for
the fiscal year ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein;
(ii) fairly present the financial condition of the Company and
its Subsidiaries as of the date thereof and results of operations for
the period covered thereby; and
(iii) except as specifically disclosed in Schedule 6.11, show all
material indebtedness and other liabilities, direct or contingent, of
the Company and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and contingent
obligations.
(b) The forward-looking financial information delivered to the Agent
(the "Projections") has been prepared on the basis of reasonable
assumptions made in good faith by the Company, and as of the date on which
such assumptions were made, no relevant facts known to the Company existed
that were not taken into account that were, individually or in the
aggregate, reasonably likely to have a material effect on the
reasonableness of such assumptions as they relate to the Company or any of
its Subsidiaries, and no events have occurred subsequent thereto that are,
individually or in the aggregate, reasonably likely to have a material
effect on the reasonableness of such assumptions as they relate to the
Company. There are no facts known to the Company that are inconsistent in
any material respect with the Projections taken as a whole or such
assumptions.
(c) Since March 31, 1999 (or as otherwise disclosed in writing to the
Agent and the Banks prior to the Closing Date), there has not been, nor is
it reasonably likely that there will be, any Material Adverse Effect.
6.12 Environmental Matters. The Company conducts in the ordinary course of
business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in Schedule 6.12, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary is
a party to or bound by any Contractual Obligation, or subject to any restriction
in any Organization Document, or any Requirement of Law, which could reasonably
be expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company and its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 6.05, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
6.16 Subsidiaries. The Company has no Principal Subsidiaries other than as
set forth in Schedule 6.16 hereto. Schedule 6.16 correctly sets forth as to each
Principal Subsidiary its name, the jurisdiction of its formation, if a
partnership, or incorporation, if a corporation, its parent corporation. All of
the outstanding shares of the capital stock of each class of each corporate
Subsidiary have been validly issued and are fully paid and nonassessable and,
except as otherwise indicated in Schedule 6.16 are owned, beneficially and of
record, by the Company or such parent corporation, free and clear of any Liens.
6.17 Insurance. Except as specifically disclosed in Schedule 6.17, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
6.18 Labor Relations. None of the Company or its Subsidiaries is engaged in
any unfair labor practice which could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice complaint pending or, to
the best knowledge of the Company, threatened against the Company or any of its
Subsidiaries before the National Labor Relations Board of any court of labor
board, and no grievance or arbitration proceedings arising out of or under
collective bargaining agreements is so pending or, to the best knowledge of the
Company, threatened; (b) no strike, lock-out, labor dispute, slowdown or work
stoppage pending or, to the best knowledge of the Company, threatened against
the Company or any of its Subsidiaries; and (c) no union representation or
certification question existing or pending with respect to the employees of the
Company or any of its Subsidiaries and, to the best knowledge of the Company, no
union organization activity taking place, which unfair labor practice complaint,
grievance or arbitration proceedings, strike, lock-out, labor dispute, slowdown
or work stoppage or union \representation or certification question could
reasonably be expected to have a Material Adverse Effect. True and correct
copies of each collective bargaining agreement, to which the Company or any of
its Subsidiaries is a party, have been provided to the Agent.
6.19 Representations and Warranties in Related Documents. On the Closing
Date, the representations of the Company and of its Subsidiaries contained in
the other Loan Documents and in any document, certificate or instrument
delivered pursuant to this Agreement will be true and correct in all material
respects and each of the Agent and the Banks may rely on such representations
and warranties, if not made directly to each of the Agent and the Banks, as if
such representations and warranties were made directly to each of the Agent and
the Banks.
6.20 Solvency. Each of the Company and its Subsidiaries is Solvent and,
immediately after giving effect to the consummation of the transactions
contemplated by this Agreement, each of the Company and its Subsidiaries will be
Solvent.
For purposes of this Section 6.20 the term "Solvent" shall mean, with
respect to any Person, that:
(a) the assets of such Person, at a fair valuation, exceed the total
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of such Person;
(b) based on current projections, which are based on underlying
assumptions which provide a reasonable basis for the projections and which
reflect such Person's judgment based on present circumstances of the most
likely set of conditions and such Person's most likely course of action for
the period projected, such Person believes it has sufficient cash flow to
enable it to pay its debts as they mature; and
(c) such Person does not have an unreasonably small capital with which
to engage in its anticipated business.
For purposes of this Section 6.20, the "fair valuation" of the assets of
any Person shall be determined on the basis of the amount which may be realized
within a reasonable time, either through collection or sale of such assets at
the regular market value, conceiving the latter as the amount which could be
obtained for the property in question within such period by a capable and
diligent businessman from an interested buyer who is willing to purchase under
ordinary selling conditions.
6.21 Swap Obligations. Neither the Company nor any of its Subsidiaries has
incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks associated with
such matters and has not relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into any Swap Contract.
6.22 Year 2000. The Company and its Subsidiaries have developed and
budgeted for a comprehensive program to address the Year 2000 problem. The
Company and its Subsidiaries have implemented that program substantially in
accordance with its timetable and budget and the Company reasonably anticipates
that they will substantially avoid the Year 2000 problem as to all computers, as
well as embedded microchips in non-computing devices, that are material to the
Company's and its Subsidiaries business, properties or operations. The Company
and its Subsidiaries have developed feasible contingency plans adequately to
ensure uninterrupted and unimpaired business operations in the event of failure
of their own equipment due to the Year 2000 problem.
6.23 Collateral Documents.
(a) The provisions of each of the Collateral Documents are effective
to create in favor of the Collateral Agent for the benefit of the Banks and
the other Senior Secured Lenders, a legal, valid and enforceable first
priority security interest in all right, title and interest of the Company
and its Subsidiaries in the Collateral described therein subject to
Permitted Liens; and financing statements have been (or will be) filed in
the offices in all of the jurisdictions listed in the schedule to the
Security Agreement.
(b) Each Mortgage when delivered will be effective to grant to the
Collateral Agent for the benefit of the Banks and the other Senior Secured
Lenders a legal, valid and enforceable deed of trust lien on all the right,
title and interest of the mortgagor under such Mortgage in the mortgaged
Property described therein. When each such Mortgage is duly recorded in the
offices listed on the schedule to such Mortgage, and the mortgage recording
fees and taxes in respect thereof are paid and compliance is otherwise had
with the formal requirements of state law applicable to the recording of
real estate mortgages generally, each such mortgaged Property, subject to
Permitted Liens and the encumbrances and exceptions to title set forth
therein and except as noted in the title policies delivered to the Agent
pursuant to Section 5.01, shall be subject to a legal, valid, enforceable
and perfected first priority deed of trust and when financing statements
have been filed in the offices listed in the schedule to such Mortgage,
such Mortgage also shall create a legal, valid, enforceable and perfected
first lien on, and security interest in, all right, title and interest of
the Company or such Subsidiary under such Mortgage in all personal property
and fixtures which is covered by such Mortgage, subject to no other Liens,
except Permitted Liens and the encumbrances and exceptions to title set
forth therein and except as noted in the title policies delivered to the
Agent pursuant to Section 5.01.
(c) The provisions of the Pledge Agreements are effective to create,
in favor of the Collateral Agent for the benefit of the Banks and the other
Senior Secured Lenders, a legal, valid and enforceable security interest in
all of the collateral described therein; and the Pledged Collateral (as
defined in the Pledge Agreement) was delivered to the Agent or its nominee
in accordance with the terms thereof. The Lien of the Pledge Agreements
constitutes a perfected, first priority security interest in all right,
title and interest of the Company or such Subsidiary, as the case may be,
in the Collateral described therein, prior and superior to all other Liens
and interests.
6.24 121A Agreements. Each 121A Agreement is in all material respects
valid, binding and in full force and effect and is enforceable by Summer Street
in accordance with its terms. As of the Closing Date, Summer Street has
performed in all material respects all obligations required to be performed by
it to date under the 121 Agreements (other than completion of the plaza) and it
is not (with or without the lapse of time or the giving of notice, or both) in
breach or default in any material respect thereunder and, to the knowledge of
the Company, no other party to any of the 121A Agreements has been (with or
without the lapse of time or the giving of notice, or both) in breach or default
in any material respect thereunder.
6.25 Full Disclosure. None of the representations or warranties made by the
Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on
behalf of the Company to the Banks prior to the Closing Date), contains any
untrue statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
7.01 Financial Statements. The Company shall deliver to the Agent, in form
and detail satisfactory to the Agent and the Majority Banks, with sufficient
copies for each Bank:
(a) as soon as available, but not later than ninety (90) days after
the end of each fiscal year (commencing with the fiscal year ended December
31, 1999, a copy of the audited consolidated balance sheet of the Company
and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, and accompanied by the opinion of
Price Waterhouse Coopers LLC or another nationally-recognized independent
public accounting firm ("Independent Auditor") which report shall state
that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years. Such opinion shall not be qualified as
to (i) going concern, (ii) any limitation in the scope of the audit, or
(iii) possible errors generated by financing reporting and related systems
due to the Year 2000 problem; and
(b) as soon as available, but not later than forty-five (45) days
after the end of each of the first three fiscal quarters of each fiscal
year (commencing with the fiscal quarter ended June 30, 1999), a copy of
the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such quarter, and
certified by a Responsible Officer as fairly presenting, in accordance with
GAAP (subject to ordinary, good faith year-end audit adjustments), the
financial position and the results of operations of the Company and the
Subsidiaries.
7.02 Certificates; Other Information. The Company shall furnish to the
Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a Compliance Certificate executed
by a Responsible Officer;
(b) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Company, and copies of all annual, regular,
periodic and special reports and registration statements which the Company
may file or be required to file with the SEC under Section 13 or 15(d) of
the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Bank pursuant to other provisions of this Section,
including, without limitation, any disclosure required by the SEC in
connection with the Year 2000 problem;
(c) upon the request of the Agent or any Bank, a copy of the Company's
and its Subsidiaries' plan, timetable and budget to address the Year 2000
problem; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Agent, at the request of any Bank, may from time to time request.
7.03 Notices. The Company shall promptly notify the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default, specifying
the nature and period of existence thereof and specifying what action the
Company is taking or proposes to take with respect thereto;
(b) of any matter that has resulted or may result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or
proceeding affecting the Company or any Subsidiary; including pursuant to
any applicable Environmental Laws;
(c) Within 10 days of the occurrence thereof, notice of any (i) ERISA
Event, (ii) Prohibited Transaction in connection with any Plan or any trust
created thereunder which has a Material Adverse Effect, (iii) the adoption
of, or the commencement of contributions to, any Plan subject to Section
412 of the Code by the Company or any ERISA Affiliate, or (iv) the adoption
of any amendment to a Plan subject to Section 412 of the Code, if such
amendment results in a material increase in contributions or a material
Unfunded Pension Liability, in each case specifying the nature thereof and
what action the Company or any of its ERISA Affiliates is taking or
proposes to take with respect thereto, and, when known, any action taken by
any Governmental Authority with respect thereto;
(d) With reasonable promptness copies of (a) all notices received by
the Company or any of its ERISA Affiliates of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan; and (b) all notices received by the Company or any of its
ERISA Affiliates from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to Section 4202 of
ERISA;
(e) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
and
(f) upon the request from time to time of the Agent, the Swap
Termination Values, together with a description of the method by which such
values were determined, relating to any then-outstanding Swap Contracts to
which the Company or any of its Subsidiaries is party; and
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each
notice under Section 7.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have
been (or foreseeably will be) breached or violated.
7.04 Preservation of Corporate Existence, Etc. The Company shall, and shall
cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its business except in
connection with sales of assets permitted by Section 8.03 and transactions
permitted by Section 8.04 and Section 8.07; and
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
7.05 Maintenance of Property. The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property which is used or
useful in its business in good working order and condition, ordinary wear and
tear excepted, except as permitted by Section 8.03. The Company and each
Subsidiary shall use the standard of care typical in the industry in the
operation and maintenance of its facilities.
7.06 Insurance. In addition to insurance requirements set forth in the
Collateral Documents, the Company shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons. All such insurance
with respect to the Collateral shall name the Agent as loss payee/mortgagee and
as an additional insured for the benefit of the Banks, as their interests may
appear.
7.07 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such
Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property; and
(c) all indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
7.08 Compliance with Laws. The Company shall comply, and shall cause each
Subsidiary to comply, in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.09 Compliance with ERISA. The Company shall cause, and cause each of its
ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent or any Bank to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at the expense of
the Company and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, when an Event of Default exists the Agent or any
Bank may do any of the foregoing at the expense of the Company at any time
during normal business hours and without advance notice.
7.11 Environmental Laws. The Company shall, and shall cause each Subsidiary
to, conduct its operations and keep and maintain its property in compliance with
all Environmental Laws.
7.12 Use of Proceeds. The Company shall use the proceeds of the Loans (i)
to refinance a portion of outstanding indebtedness of the Company to the Prior
Bank Lenders in an aggregate principle amount up to $110,670,728.59; (ii) to pay
expenses and costs associated with the Loans; and (iii) to provide for general
corporate purposes, including funding working capital needs and issuing Letters
of Credit.
7.13 Additional Guarantors. The Company shall cause each of its
Subsidiaries that becomes a Domestic Principal Subsidiary, within 30 days after
becoming a Domestic Principal Subsidiary (each, an "Additional Guarantor"), to
become a Guarantor under the Guaranty (each, an "Additional Guaranty") and, in
connection therewith, deliver to the Agent those documents applicable to
Domestic Principal Subsidiaries pursuant to Section 5.03, and such other
documents as the Agent may reasonably request.
7.14 Further Assurances.
(a) The Company shall ensure that all written information, exhibits
and reports furnished to the Agent or the Banks do not and will not contain
any untrue statement of a material fact and do not and will not omit to
state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which
made, and will promptly disclose to the Agent and the Banks and correct any
defect or error that may be discovered therein or in any Loan Document or
in the execution, acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent or the Majority Banks, the
Company shall (and shall cause any of its Subsidiaries to) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing
statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other instruments the
Agent or such Banks, as the case may be, may reasonably require from time
to time in order (i) to carry out more effectively the purposes of this
Agreement or any other Loan Document, (ii) to subject to the Liens created
by any of the Collateral Documents any of the properties, rights or
interests covered by any of the Collateral Documents, (iii) to perfect and
maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby, and (iv) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to
the Agent and Banks the rights granted or now or hereafter intended to be
granted to the Banks under any Loan Document or under any other document
executed in connection therewith.
(c) Within six (6) months from the Closing Date, a Certificate from
the City of Boston or the Boston Redevelopment Authority (or such other
evidence satisfactory to the Agent and the Required Banks, in their sole
and absolute discretion) certifying that (i) all payments and other
obligations of Summer Street pursuant to the 121A Agreements (other than
completion of the plaza) have been duly performed to date and are current
and the 121A Agreements are in full force and effect, and (ii) (X) in
accordance with Exhibit F of the 6A Agreement, no consent or approval of
the City of Boston or the Boston Redevelopment Authority is required in
connection with any financing if with an insurance company, savings bank,
pension fund or other recognized institutional lender and (Y) the ninety
percent (90%) limitation on mortgaging property as set forth in Section 7
of Chapter 121A of the Massachusetts General Laws has been eliminated and
is no longer applicable to the Headquarters Building.
(d) Within six (6) months from the Closing Date, the Company shall (i)
obtain, or cause Summer Street to obtain, a mortgage on the Headquarters
Building from a third party in a minimum amount of $100,000,000, the
proceeds of which shall be applied in accordance with Section 2.07(e) of
this Agreement or (ii) obtain from another source of financing acceptable
to the Agent and Banks financing in a minimum amount of $100,000,000, the
proceeds of which shall be applied in accordance with Section 2.07(e) of
this Agreement.
(e) Within thirty (30) days from the Closing Date, the Company shall
obtain all necessary consents, tenant estoppels, subordination agreements
and other documents and instruments executed by landlords, tenants and
other Persons party to material contracts relating to any Collateral as to
which the Collateral Agent shall be granted a Lien for the benefit of the
Banks and the other Senior Secured Lenders, as requested by the Agent.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
8.01 Indebtedness. The Company shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness to the Agent or the Banks arising under any of the
Loan Documents;
(b) Indebtedness incurred on or before, or incurred under commitments
to lend, in each case existing on or before, the Closing Date and set forth
on Schedule 8.01(b) hereto and any extension, renewal, refunding and
refinancing thereof; provided that after giving effect to such extension,
renewal, refunding or refinancing the principal amount thereof is not
increased;
(c) [Intentionally Omitted];
(d) Indebtedness not exceeding $5,000,000 in the aggregate at any time
or its equivalent in another currency secured by Liens permitted by Section
8.02(d) incurred within 120 days of the acquisition or construction of such
assets secured by such Liens;
(e) Capitalized Lease Obligations;
(f) Indebtedness of the Company to any Subsidiary and of any
Subsidiary to the Company or any other Subsidiary, to the extent
permissible under Section 8.04(f)(ii);
(g) Indebtedness in respect of current liabilities incurred in the
ordinary course of business on an open account basis extended in connection
with normal purchases of goods and services;
(h) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(i) unsecured contingent obligations arising in connection with (i)
surety, performance or other similar bonds obtained in the ordinary course
of business, consistent with past practices, (ii) standby letters of credit
issued in lieu of such bonds; and (iii) Guaranty Obligations incurred in
the ordinary course of business by the Company or any of its Subsidiaries;
(j) Indebtedness arising from Permitted Swap Obligations;
(k) subject to Section 2.07 hereof, Subordinated Debt; and
(l) unsecured Indebtedness of the Company and its Subsidiaries in an
aggregate principal amount not to exceed $15,000,000.
8.02 Limitation on Liens. The Company shall not, nor shall it permit any of
its Subsidiaries to, directly or indirectly, incur, assume or suffer to exist,
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except:
(a) Liens in favor of the Collateral Agent on behalf of the Banks or
the Senior Secured Lenders in connection with this Agreement or the
Intercreditor Agreement;
(b) Liens securing Indebtedness permitted by Section 8.01(b);
(c) Permitted Liens;
(d) purchase money Liens on assets acquired or constructed by the
Company or any of its Subsidiaries in the ordinary course of business to
secure the purchase or construction price of such assets or to secure
Indebtedness permitted by Section 8.01(d) incurred solely for the purpose
of financing the acquisition or construction of such assets to be subject
to such Lien; provided, however, that no such Lien shall extend to or cover
any real or personal property other than the assets being so acquired or
constructed; provided, further, that the Indebtedness secured by such Lien
shall not exceed the lower of the cost or fair market value of the assets
encumbered by such Lien;
(e) [Intentionally Omitted]; and
(f) Liens securing Indebtedness not exceeding $5,000,000 in the
aggregate at any time outstanding.
8.03 Disposition of Assets. The Company shall not, nor shall it permit any
of its Subsidiaries to, dispose of any of its assets or enter into any sale and
leaseback agreement covering any of its fixed or capital assets; except:
(a) dispositions of assets no longer used or useful in its business
and the sale of inventory and other assets in the ordinary course having a
book value not to exceed $5,000,000 in the aggregate for any fiscal year of
the Company;
(b) dispositions of assets permitted by Section 8.07;
(c) dispositions of assets to a third party in an arms length
transaction provided that within 90 days of the date of such disposition
the net proceeds thereof are invested in or used to acquire assets useful
in the business of the Person disposing of such assets; and, provided,
further that the dispositions of such assets do not have a book value in
excess of $5,000,000 during any fiscal year of the Company.
(d) intercompany dispositions or transfers of assets between the
Company and its Subsidiaries or between any two of the Company's
Subsidiaries, provided that the book value of any assets disposed of or
transferred by a Borrower Party to any Person not a Borrower Party shall
not exceed $3,000,000 in the aggregate for any fiscal year of the Company;
and
(e) dispositions of other property having a book value not to exceed
$3,000,000 in the aggregate for any fiscal year of the Company.
8.04 Limitation on Acquisitions and Investments. The Company shall not, nor
shall it permit any of its Subsidiaries to, acquire or purchase any securities
or the assets or business of any other Person or make any investment in or loan
to any other Person, except:
(a) investments and loans existing on the Closing Date;
(b) investments in cash, cash equivalents and marketable securities
(as defined in accordance with GAAP);
(c) acquisitions of the assets or business, or investments in the
business, of any other Person which is engaged in providing cold storage,
engineering, environmental, construction and consulting services or owning
real estate relating to the facilities of the Company and its Subsidiaries
and those ventures requiring equity participation in which the services of
the Company provide a competitive advantage to the venture in a transaction
which is agreeable to or, in the case of a corporation, has been approved
by the Board of Directors of, such other Person, or of its owners in the
case of a stock purchase; provided, however, that the Total Consideration
for all such acquisitions shall not exceed $30,000,000 in the aggregate in
any fiscal year of the Company; provided, further, that any such Total
Consideration in excess of $5,000,000 in the aggregate in any fiscal year
shall consist solely of the issuance of new equity securities of the
Company or its Subsidiaries;
(d) a net noncash equity investment not to exceed $25,000,000 in the
aggregate representing equipment previously purchased for a project in
Indonesia in connection with a Joint Venture to construct an ethylene plant
and related facilities to be located in India, and the deferment of a
portion of the purchase price for such plant and facilities in an amount
not to exceed $18,000,000 in the aggregate;
(e) loans and advances by the Company and its Subsidiaries to
employees of the Company and its Subsidiaries for moving, relocation and
home purchases and other similar expenses, in each case in the ordinary
course of business, in an aggregate principal amount not to exceed $500,000
at any time with respect to any employee and in an aggregate principal
amount not to exceed $2,000,000 at any time outstanding during any fiscal
year of the company (determined without regard to any write-downs or
write-offs of such loans and advances);
(f) (i) investment and loans consisting of Indebtedness permitted by
Section 8.01 and (ii) investments and loans by the Company to any of its
Subsidiaries, investments and loans by any Subsidiaries to the Company and
investments and loans by any Subsidiaries to another Subsidiary; provided
that (A) after the Closing Date the aggregate outstanding principal amount
of all intercompany loans and advances made by the Company and its Domestic
Principal Subsidiaries to non-Domestic Principal Subsidiaries and foreign
Subsidiaries, after the Closing Date, shall not at any time exceed
$3,000,000 (determined without regard to any write-downs or write-offs of
such loans and advances), (B) other than the intercompany note of The
Nordic Group referenced in the definition of "Company Pledged Notes," each
item of intercompany Indebtedness incurred outside of the ordinary cash
management practices of the Company (including the intercompany note of The
Nordic Group referenced in the definition of "Company Pledged Notes") shall
be evidenced by a promissory note in the form of Exhibit L hereto, (C) each
such promissory note evidencing intercompany loans and advances made by a
foreign Subsidiary or a non-Domestic Principal Subsidiary to the Company or
a Domestic Principal Subsidiary of the Company shall contain the
subordination provisions set forth in Exhibit C hereto, and (D) each such
promissory note evidencing intercompany Indebtedness (other than promissory
notes that are held by foreign Subsidiaries of the Company) shall be
pledged to the Collateral Agent pursuant to the Pledge Agreements; and
(g) acquisitions and investments permitted by Section 8.07; provided
that in all cases no Default or Event of Default has occurred under this
Agreement or will occur after giving effect to any such acquisition or
investment.
8.05 Business Activities. The Company shall not, or permit any of its
Principal Subsidiaries to, engage in, any business activities or operations
substantially different from or unrelated to providing cold storage,
engineering, environmental, construction and consulting services or owning real
estate relating to the facilities of the Company and its Subsidiaries.
8.06 Limitation on Capital Expenditures. The Company shall not, nor shall
it permit any of its Subsidiaries to, create, assume or incur, or permit any of
its Subsidiaries to create, assume or incur, capital expenditures; except,
capital expenditures not exceeding in the aggregate in any fiscal year
$20,000,000.
8.07 Limitations on Fundamental Changes. The Company shall not, nor shall
it permit any of its Subsidiaries to, consummate any transaction of merger or
consolidation, reorganize, spin-off, liquidate, dissolve or wind up (or suffer
any reorganization, liquidation, dissolution or winding up) or convey, sell,
lease, license or otherwise dispose of, in one or a series of related
transactions, all or substantially all of the property, assets or business the
Company and its Subsidiaries taken as a whole (a "merger"), except so long as no
Default or Event of Default then exists or would result therefrom, mergers of
one or more Subsidiaries of the Company with and into the Company or a
Subsidiary of the Company, provided that in the case of any merger involving a
Borrower Party, such Borrower Party shall be the surviving corporation.
8.08 ERISA. The Company shall not at any time (a) permit any Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code); (ii) fail to comply with ERISA or any other applicable Laws; or (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA); which, with respect to each event listed above, has a Material
Adverse Effect, or (b) engage in a transaction could be subject to Section 4069
or 4212(c) of ERISA.
8.09 Consolidated Net Worth. The Company shall not permit its Consolidated
Net Worth as of the end of any fiscal quarter to be less than the sum of (a)
$208,350,000 plus (b) seventy-five percent (75%) of Consolidated Net Income for
each fiscal quarter (with no deduction for losses), commencing with the fiscal
quarter ending June 30, 1999, plus (c) one hundred percent (100%) of the net
proceeds received by the Company from the issuance of new Capital Stock
subsequent to the Closing Date.
8.10 Fixed Charge Coverage Ratio. The Company shall not permit the Fixed
Charge Coverage Ratio as determined of the last day of any fiscal quarter set
forth below to be less than the ratio set forth below for such date:
Fiscal Quarter Ending Ratio
--------------------- -----
On or before December 31, 1999 2.00 to 1.00
Thereafter 2.50 to 1.00
8.11 Funded Debt Coverage Ratio. The Company shall not permit the Funded
Debt Coverage Ratio as determined of the last day of any fiscal quarter set
forth below to be greater than the ratio set forth below for such date:
Fiscal Quarter Ending Ratio
--------------------- -----
On or before September 30, 1999 3.50 to 1.00
Thereafter 3.00 to 1.00
8.12 Transactions with Affiliates. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than could be obtained in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary.
8.13 Use of Proceeds.
(a) The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii)
to repay or otherwise refinance indebtedness of the Company or others
incurred to purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the
Exchange Act.
(b) The Company shall not, directly or indirectly, use any portion of
the Loan proceeds or any Letter of Credit (i) knowingly to purchase
Ineligible Securities from the Arranger during any period in which the
Arranger makes a market in such Ineligible Securities, (ii) knowingly to
purchase during the underwriting or placement period Ineligible Securities
being underwritten or privately placed by the Arranger, or (iii) to make
payments of principal or interest on Ineligible Securities underwritten or
privately placed by the Arranger and issued by or for the benefit of the
Company or any Affiliate of the Company. The Arranger is a registered
broker-dealer and permitted to underwrite and deal in certain Ineligible
Securities; and "Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. 24, Seventh), as
amended.
8.14 Joint Ventures. Except as permitted by Section 8.04, the Company shall
not, and shall not suffer or permit any Subsidiary to enter into any Joint
Venture, other than in the ordinary course of business.
8.15 Restricted Payments. The Company shall not, and shall not suffer or
permit any Subsidiary to, declare, make or pay, or incur any liability to make
or pay, or cause or permit to be declared, made or paid any Restricted Payment,
except that the Company may:
(a) (i) declare and make dividend payments or other distributions
payable solely in its common stock or pay cash dividends to its
stockholders computed on a cumulative consolidated basis in an aggregate
amount not to exceed $8,000,000 during any twelve (12) month period
provided, that, immediately before and after giving effect to such proposed
action, no Default or Event of Default is then in existence or would
otherwise arise therefrom;
(ii) redeem or repurchase common stock (or options to purchase
such common stock) from officers, employees and directors of the
Company or any of its Subsidiaries, so long as the purpose of such
purchase is to acquire common stock to provide officers, employees and
directors with funds to satisfy tax liabilities of any such purchase;
provided that in all such cases (A) no Default or Event of Default is
then in existence or would otherwise arise therefrom, (B) the
aggregate amount of all cash paid in respect of all such shares so
redeemed or repurchased does not exceed $1,000,000 in the aggregate
during any fiscal year of the Company; and
(iii) notwithstanding anything herein to the contrary, any
Subsidiary of the Company may declare and make dividend payments to
the Company or to any Wholly-Owned Subsidiary of the Company.
(b) Notwithstanding anything herein to the contrary, the Company shall
not, and shall not permit any of its Subsidiaries to:
(i) make (a) any optional payment or prepayment on (or deliver a
notice of prepayment under) or redemption (including, without
limitation, by making payments to a sinking or analogous fund),
defeasance or repurchase of any Indebtedness (other than Indebtedness
pursuant to this Agreement and the Indebtedness listed on Schedule
8.15(b)(i)) or (b) any payments in violation of the subordination
provisions of any Subordinated Debt; or
(ii) change or amend the terms of any Subordinated Debt (or any
indenture or agreement in connection therewith) if the effect of such
amendment is to: (a) increase the interest rate on such Subordinated
Debt; (b) change the dates upon which payments of principal or
interest are due on such Subordinated Debt other than to extend such
dates; (c) change any default or event of default other than to delete
or make less restrictive any default provision therein, or add any
covenant with respect to such Subordinated Debt; (d) change the
redemption or prepayment provision of such Subordinated Debt other
than to extend the dates therefor or to reduce the premiums payable in
connection therewith; (e) grant any security or collateral to secure
payment of such Subordinated Debt; (f) add any guarantor thereof, or
(g) change or amend any other term if such change or amendment would
materially increase the obligations of any obligor or confer
additional material rights on the holder of any Subordinated Debt in a
manner adverse to the Company or any of its Subsidiaries, the Agent,
any Bank or any Issuing Bank.
8.16 Accounting Changes. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
8.17 Amendments. Without limiting the generality of any restrictions
contained in any Contractual Obligation evidencing the Uncommitted Lines, the
Company covenants and agrees that it shall not, and shall not permit any of its
Subsidiaries to, without the prior consent of the Agent and the Required Banks,
consent or agree to, or otherwise suffer, any amendment, waiver or modification
of, or supplement to any Contractual Obligation evidencing the Uncommitted
Lines, except for modifications made in the ordinary course of business which do
not adversely affect the Agent and the Banks or increase any amounts paid by the
Company or any of its Subsidiaries thereunder.
8.18 Collateral Pool; Uncommitted Lines. The Company will not permit the
total amount of Indebtedness outstanding under this Agreement and the
Uncommitted Lines which is secured by the Collateral Pool at any time to exceed
$250,000,000 in the aggregate, and the Company will not permit the Indebtedness
outstanding under the Uncommitted Lines at any time to exceed $18,000,000 in the
aggregate.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to pay, (i) when and as required to
be paid herein, any amount of principal of any Loan or of any L/C
Obligation, (ii) within three (3) Business Days after the same becomes due,
any interest, fee or any other amount payable hereunder or under any other
Loan Document, or (iii) within three (3) Business Days after demand
therefor, any other fee or amount not referenced in clause (ii) above
payable to the Agent, the Arranger, the Issuing Bank or any Bank hereunder;
or
(b) Representation or Warranty. Any representation or warranty by the
Company or any Subsidiary made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial
or other statement by the Company, any Subsidiary, or any Responsible
Officer, furnished at any time under this Agreement, or in or under any
other Loan Document, is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Company or any Subsidiary fails to perform
or observe any term, covenant or agreement contained in any of Section
7.01, 7.12, or 7.13 or in Article VIII; or
(d) Other Defaults. The Company or any Subsidiary party thereto fails
to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue
unremedied for a period of fifteen (15) days after the earlier of (i) the
date upon which a Responsible Officer knew or reasonably should have known
of such failure or (ii) the date upon which written notice thereof is given
to the Company by the Agent or any Bank; or
(e) Cross-Default. The Company or any Subsidiary (A) fails to make any
payment in respect of any Indebtedness having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of more than $5,000,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues
after the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure; or (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of
such failure if the effect of such failure, event or condition is to cause,
or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated
maturity, or cash collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or any Subsidiary
(i) ceases or fails to be solvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or (iv)
takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Company or any Subsidiary, or any writ,
judgment, warrant of attachment, execution or similar process, is issued or
levied against a substantial part of the Company's or any Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or
such writ, judgment, warrant of attachment, execution or similar process
shall not be released, vacated or fully bonded within sixty (60) days after
commencement, filing or levy; (ii) the Company or any Subsidiary admits the
material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency Proceeding; or (iii) the Company or any Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or
other similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Company under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $5,000,000 or (ii) the Company or any ERISA Affiliate shall fail
to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of $5,000,000; or
(i) Monetary Judgments. One or more final (non-interlocutory)
judgments, orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $5,000,000 or more, and the same
shall remain unvacated and unstayed pending appeal for a period of thirty
(30) days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree
is entered against the Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall
be any period of thirty (30) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) Change of Control. There occurs any Change of Control; or
(l) Guarantor Defaults. Any Guarantor fails in any material respect to
perform or observe any term, covenant or agreement in the Guaranty; or the
Guaranty is for any reason partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise ceases to be in
full force and effect, or any Guarantor or any other Person contests in any
manner the validity or enforceability thereof or denies that it has any
further liability or obligation thereunder; or any event described at
Sections (f) or (g) of this Section occurs with respect to any Guarantor;
or
(m) Invalidity of Subordination Provisions. The subordination
provisions of any agreement or instrument governing any Subordinated Debt
is for any reason revoked or invalidated, or otherwise cease to be in full
force and effect, or the Company, any of its Subsidiaries or any other
Person contests in any manner the validity or enforceability thereof or
denies that it has any further liability or obligation thereunder, or the
Indebtedness hereunder is for any reason subordinated or does not have the
priority contemplated by this Agreement or the Subordination Agreement, the
Subordinated Debt or such subordination provisions.; or
(n) Collateral. Any Collateral Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid security
interest in the Collateral purported to be covered thereby or such security
interest shall for any reason cease to be a perfected and first priority
security interest subject only to Permitted Liens; or
(o) Enforceability of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than the
agreement or action (or omission to act) of the Agent, the Issuing Bank or
the Banks, or satisfaction in full of all the Obligations ceases to be in
full force and effect or is declared by a court of competent jurisdiction
to be null and void, invalid or unenforceable in any material respect; or
any Borrower Party thereto denies in writing that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind same.
9.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans and any
obligation of the Issuing Banks to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Company; and
(c) demand that the Company immediately provide to the Agent cash
collateral for the full amount of each outstanding Letter of Credit, and
the Company agrees to immediately provide such cash collateral and
acknowledges and agrees that the Agent and the Banks would not have an
adequate remedy at law for failure by the Company to honor any such demand
and that the Agent and the Banks shall have the right to require the
Company to specifically perform such undertaking whether or not any draws
have been made under the Letters of Credit; and
(d) exercise and enforce on behalf of itself and the Banks any and all
rights and remedies available to it and the Banks under the Loan Documents
or applicable law; provided, however, that upon the occurrence of any event
specified in Section (f) or (g) of Section 9.01 (in the case of clause (i)
of Section (g) upon the expiration of the 60-day period mentioned therein),
the obligation of each Bank to make Loans and any obligation of the Issuing
Bank to Issue Letters of Credit shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without
further act of the Agent, the Issuing Bank or any Bank.
9.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent".
(a) Each Bank hereby irrevocably (subject to Section 10.09) appoints,
designates and authorizes the Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Agent have or be deemed to have any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan Document
or otherwise exist against the Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Each Issuing Bank shall act on behalf of the Banks with respect to
any Letters of Credit Issued by it and the documents associated therewith
until such time and except for so long as the Agent may agree at the
request of the Majority Banks to act for such Issuing Bank with respect
thereto; provided, however, that each Issuing Bank shall have all of the
benefits and immunities (i) provided to the Agent in this Article X with
respect to any acts taken or omissions suffered by such Issuing Bank in
connection with Letters of Credit Issued by it or proposed to be Issued by
it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term "Agent", as used in this
Article X, included each Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with respect
to each Issuing Bank.
10.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or for the value of
any Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Company or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
10.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Majority Banks as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Banks and such request
and any action taken or failure to act pursuant thereto shall be binding
upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Bank that has executed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to the
Bank.
10.05 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default or Event
of Default as may be requested by the Majority Banks in accordance with Article
IX; provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
10.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
10.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata,
from and against any and all Indemnified Liabilities; provided, however, that no
Bank shall be liable for the payment to the Agent-Related Persons of any portion
of such Indemnified Liabilities resulting from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
10.08 Agent in Individual Capacity. Bank of America and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though Bank of America were not the Agent or an
Issuing Bank hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or any of its Subsidiaries and Affiliates) and acknowledge that the
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not the Agent or an Issuing Bank.
10.09 Successor Agent. The Agent may, and at the request of the Majority
Banks shall, resign as Agent upon thirty (30) days' notice to the Banks. If the
Agent resigns under this Agreement, the Majority Banks shall appoint from among
the Banks a successor agent for the Banks, which successor agent shall be
approved by the Company (which approval shall not be unreasonably withheld). If
no successor agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article X and Sections 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Majority Banks
appoint a successor agent as provided for above. Notwithstanding the foregoing,
however, Bank of America may not be removed as the Agent at the request of the
Majority Banks unless Bank of America shall also simultaneously be replaced as
an Issuing Bank hereunder pursuant to documentation in form and substance
reasonably satisfactory to Bank of America.
10.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code,
such Bank agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly
completed and executed copies of IRS Form 1001 before the payment of
any interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement;
(ii) if such Bank claims that interest paid under this Agreement
is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Bank, two
properly completed and executed copies of IRS Form 4224 before the
payment of any interest is due in the first taxable year of such Bank
and in each succeeding taxable year of such Bank during which interest
may be paid under this Agreement; and
(iii) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from,
or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such
Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Bank. To the extent
of such percentage amount, the Agent will treat such Bank's IRS Form 1001
as no longer valid.
(c) If any Bank claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
the Company to such Bank, such Bank agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by Sections
1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such
Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. However, if the forms or other documentation
required by Section (a) of this Section are not delivered to the Agent,
then the Agent may withhold from any interest payment to such Bank not
providing such forms or other documentation an amount equivalent to the
applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly
executed, or because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Banks under this Section
shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
10.11 Co-Agents. None of the Banks identified on the facing page or
signature pages of this Agreement as a "co-agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified as a "co-agent" shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by any Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and the Company
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and the Company and acknowledged
by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 2.05 or Section 2.07); (except
for any increase of the Combined Commitments of up to $15,000,000, subject
to the prior approval of the Agent and the Arranger pursuant to Section
4.10);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Banks (or any of them) hereunder or under any other Loan
Document, including, without limitation, any mandatory prepayments
contemplated by Section 2.07;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (iii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments (except for any change in
the percentage of the Commitments resulting from the increase of the
Combined Commitments of up to $15,000,000 pursuant to Section 4.10) or of
the aggregate unpaid principal amount of the Loans which is required for
the Banks or any of them to take any action hereunder; or
(e) amend this Section, Section 2.14 or Section 8.03 or any provision
herein providing for consent or other action by all Banks; or
(f) discharge any Guarantor, or release all or substantially all of
the Collateral except as otherwise may be provided in the Collateral
Documents, or except where the consent of the Majority Banks only is
specifically provided for; and, provided further, that (i) no amendment,
waiver or consent shall, unless in writing and signed by the Issuing Bank
in addition to the Majority Banks or all the Banks, as the case may be,
affect the rights or duties of the Issuing Bank under this Agreement or any
L/C-Related Document relating to any Letter of Credit Issued or to be
Issued by it, (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Majority Banks or all the Banks,
as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, and (iii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed
by the parties thereto.
11.02 Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by the Company by facsimile (i) shall be immediately confirmed
by a telephone call to the recipient at the number specified on Schedule
11.02, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on Schedule 11.02; or, as directed
to the Company or the Agent, to such other address as shall be designated
by such party in a written notice to the other parties, and as directed to
any other party, at such other address as shall be designated by such party
in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third Business Day
after the date deposited into the U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Article II, III or X to the Agent
shall not be effective until actually received by the Agent, and notices
pursuant to Article III to the Issuing Bank shall not be effective until
actually received by the Issuing Bank at the address specified for any
"Issuing Bank" on Schedule 11.02.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action taken or
not taken by the Agent or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Banks of
a confirmation which is at variance with the terms understood by the Agent
and the Banks to be contained in the telephonic or facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
11.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Bank of America (including in its capacity as
Agent and Issuing Bank), and the Arranger within five (5) Business Days
after demand (subject to Section 5.01(f)) for all reasonable and documented
costs and expenses incurred by Bank of America (including in its capacity
as Agent and Issuing Bank), and the Arranger in connection with the
development, preparation, delivery, administration and execution of, and
any amendment, supplement, waiver or modification to (in each case, whether
or not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
Attorney Costs incurred by Bank of America (including in its capacity as
Agent and an Issuing Bank) with respect thereto; and
(b) pay or reimburse the Agent, the Arranger, the Issuing Bank and
each Bank within five (5) Business Days after demand (subject to Section
5.01(f)) for all costs and expenses (including Attorney Costs) incurred by
them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other
Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
11.05 Company Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold the
Agent-Related Persons, and each Bank and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Agent or replacement of any Bank)
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 the transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement, the Loans or Letters of Credit or the use of the proceeds
thereof or related to or arising out of any Offshore Currency transactions
entered into in connection herewith, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting solely from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations.
11.06 Payments Set Aside. To the extent that the Company makes a payment to
the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
11.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank.
11.08 Assignments, Participations, etc. (a) Any Bank may, with the written
consent of the Company (at all times other than during the existence of a
Default or an Event of Default) and the Agent and the Issuing Bank, which
consents shall not be unreasonably withheld, at any time assign and delegate to
one or more Eligible Assignees (provided that no written consent of the Company,
the Agent or the Issuing Bank shall be required in connection with any
assignment and delegation by a Bank to an Eligible Assignee that is a Bank or an
Affiliate of such Bank) (each an "Assignee") all, or any ratable part of all, of
the Loans, the Commitments, the L/C Obligations and the other rights and
obligations of such Bank hereunder, in a minimum amount of $5,000,000 and so
long as, after giving effect thereto, the Bank's remaining Commitment is either
(i) equal to or greater than $5,000,000 or (ii) zero; provided, however, that
the Company and the Agent may continue to deal solely and directly with such
Bank in connection with the interest so assigned to an Assignee until (X)
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given to
the Company and the Agent by such Bank and the Assignee; (Y) such Bank and its
Assignee shall have delivered to the Company and the Agent an Assignment and
Acceptance in the form of Exhibit J ("Assignment and Acceptance") together with
any Note or Notes subject to such assignment and (Z) the assignor Bank or
Assignee has paid to the Agent a processing fee in the amount of $3,500
(including, but not limited to, with respect to an assignment by a Bank to
another Bank).
(b) From and after the date that the Agent notifies the assignor Bank
that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing
fee, (i) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to the
extent that rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and
payment of the processing fee, (and provided that it consents to such
assignment in accordance with Section 11.08(a)), the Company shall execute
and deliver to the Agent, new Notes evidencing such Assignee's assigned
Loans and Commitment and, if the assignor Bank has retained a portion of
its Loans and its Commitment, replacement Notes in the principal amount of
the Loans retained by the assignor Bank (such Notes to be in exchange for,
but not in payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and
the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "Participant") participating
interests in any Loans, the Commitment of that Bank, the L/C Obligations
and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents in a minimum amount of $5,000,000; provided,
however, that (i) the originating Bank's obligations under this Agreement
shall remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Company, the
Issuing Bank and the Agent shall continue to deal solely and directly with
the originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Bank shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, except
to the extent such amendment, consent or waiver would require unanimous
consent of the Banks as described in the first proviso to Section 11.01. In
the case of any such participation, the Participant shall be entitled to
the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Bank
hereunder, and if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement. Each Bank shall promptly notify each of the Agent and
the Company of any such participation hereunder, including the name of any
Participant.
(e) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note
held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR 203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
11.09 Confidentiality. Each Bank agrees to take and to cause its Affiliates
to take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
the Company and provided to it by the Company or any of its Subsidiaries, or by
the Agent on the Company's or such Subsidiaries' 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 or in connection with other business now
or hereafter existing or contemplated with the Company or any of its
Subsidiaries; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Bank, or
(ii) was or becomes available on a non-confidential basis from a source other
than the Company, provided that such source is not bound by a confidentiality
agreement with the Company known to the Bank; provided, however, that any Bank
may disclose such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which the Bank is subject or in connection with
an examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Bank or its 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 such Bank's independent auditors and other professional
advisors; (G) to any Participant or Assignee, actual or potential, provided that
such Person agrees in writing to keep such information confidential to the same
extent required of the Banks hereunder; (H) as to any Bank or its Affiliate, as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any of its Subsidiaries is party or is
deemed party with such Bank or such Affiliate; and (I) to its Affiliates.
11.10 Set-off. In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Bank is authorized at any time and from time to time, without prior notice to
the Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Company against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Agent or such Bank shall
have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees promptly to notify
the Company and the Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
11.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.13 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.14 No Third Parties Benefitted. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Banks, the Agent
and the Agent-Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
11.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE
AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF CALIFORNIA,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE
AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE
AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE BANKS EACH
WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
11.16 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE
AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.17 Currency. Each reference in this Agreement to Dollars or to an
Offshore Currency (the "relevant currency") is of the essence. To the fullest
extent permitted by law, the obligation of the Company in respect of any amount
due in the relevant currency under this Agreement shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the relevant currency that the
Agent or Bank entitled to receive such payment may, in accordance with normal
banking procedures, purchase with the sum paid in such other currency (after any
premium and costs of exchange) on the Business Day immediately following the day
on which such party receives such payment. If the amount in the relevant
currency so purchased for any reason falls short of the amount originally due in
the relevant currency, the Company shall pay such additional amounts, in the
relevant currency, as may be necessary to compensate for the shortfall. Any
obligations of the Company not discharged by such payment shall, to the fullest
extent permitted by applicable law, be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Los Angeles, California by their proper and
duly authorized officers as of the day and year first above written.
STONE & WEBSTER, INCORPORATED
By: ______________________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Agent
By: ______________________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Issuing Bank
By: ______________________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as a Bank
By: ______________________________________________
Name:
Title:
ARAB BANKING CORPORATION (B.S.C.),
as a Bank
By: ______________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Bank
By: ______________________________________________
Name:
Title:
HSBC BANK USA,
as a Bank
By: ______________________________________________
Name:
Title:
<PAGE>
EXHIBITS AND SCHEDULES
THE REGISTRANT AGREES TO PROVIDE THE SECURITIES AND EXCHANGE COMMISSION,
UPON REQUEST, WITH COPIES OF THE EXHIBITS AND SCHEDULES HERETO
<PAGE>
