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F O R M 10 - Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) Quarterly Report Pursuant to Section 13 or 15(d) of The Securities
Exchange Act of 1934
For the Quarterly Period Ended March 31, 1994
( ) 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 1-5057
BOISE CASCADE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 82-0100960
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Jefferson Square
P.O. Box 50
Boise, Idaho 83728-0001
(Address of principal executive offices) (Zip Code)
(208) 384-6161
(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.
Shares Outstanding
Class as of April 30, 1994
Common stock, $2.50 par value 38,036,681
PART I - FINANCIAL INFORMATION
Quarterly Financial Statements
The quarterly financial statements of the Company and its subsidiaries
for the first quarter of 1994 and certain related notes are presented
in the Company's Report to Shareholders for the First Quarter of 1994
under the captions "Balance Sheets," "Statements of Loss," "Segment
Information," "Statements of Cash Flows," and "Notes to Quarterly
Financial Statements" and are incorporated herein by this reference.
The quarterly financial statements have not been audited by indepen-
dent public accountants, but in the opinion of management, all adjust-
ments necessary to present fairly the results for the periods have been
included. Except as may be disclosed in the "Notes to Quarterly
Financial Statements," the adjustments made were of a normal, recurring
nature. Quarterly results are not necessarily indicative of results
that may be expected for the year.
The statements have been prepared by the Company pursuant to the rules
and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations. These quarterly financial statements should be read
together with the statements and the accompanying notes included in the
Company's 1993 Annual Report.
Supplementary Notes to Quarterly Financial Statements
The following notes supplement the Notes to Quarterly Financial
Statements referred to previously.
(1) NET LOSS PER COMMON SHARE. Net loss per common share was determined
by dividing net loss, as adjusted, by applicable shares outstanding.
The computation of fully diluted net loss per share was antidilutive
in each of the periods presented; therefore, the amounts reported for
primary and fully diluted loss are the same.
For the three-month periods ended March 31, 1994 and 1993, primary
average shares include only common shares outstanding. For these
periods, common stock equivalents attributable to stock options,
Series E conversion preferred stock, and Series G conversion preferred
stock subsequent to issuance in September 1993 were excluded because
they were antidilutive. Excluded common equivalent shares were
16,263,000 at March 31, 1994, compared with 8,731,000 shares at the
same date in the prior year. In addition to common and common
equivalent shares, fully diluted average shares include common shares
that would be issuable upon conversion of the Company's other
convertible securities.
Three Months Ended March 31
1994 1993
(expressed in thousands)
Net loss as reported $ (37,600) $ (12,100)
Preferred dividends (13,648) (9,173)
_________ _________
Primary loss (51,248) (21,273)
Assumed conversions:
Preferred dividends eliminated 10,945 7,612
Interest on 7 percent
debentures eliminated 860 953
Supplemental ESOP contribution (3,144) (3,207)
_________ _________
Fully diluted loss $ (42,587) $ (15,915)
Average number of common shares
Primary 38,020 37,948
Fully diluted 61,249 53,760
Primary loss includes the aggregate amount of dividends on the
Company's preferred stock. The dividend attributable to the Company's
Series D convertible preferred stock held by the Company's ESOP
(employee stock ownership plan) is net of a tax benefit. To determine
the fully diluted loss, dividends on convertible preferred stock and
interest, net of any applicable taxes, have been added back to primary
loss to reflect assumed conversions. The fully diluted loss was
increased by the after-tax amount of additional contributions that the
Company would be required to make to its ESOP if the Series D ESOP
preferred shares were converted to common stock.
(2) DEBT. At March 31, 1994, the Company had a $750 million revolving
credit agreement with a group of banks. Borrowing under the agreement
was $255 million. The agreement was replaced with a new committed
unsecured revolving agreement of $650 million early in April. Also at
March 31, 1994, one of the Company's Canadian subsidiaries had a
$130 million unsecured revolving credit agreement that permitted
borrowing in either U.S. or Canadian dollars. At March 31, 1994, all
of that amount had been borrowed. In April, outstanding borrowings
under the Canadian revolver were repaid, and the agreement was
cancelled.
(3) INVENTORIES. Inventories include the following:
March 31 December 31
1994 1993 1993
(expressed in thousands)
Finished goods and work in process $259,435 $244,831 $255,395
Logs 65,596 43,564 106,649
Other raw materials and supplies 180,797 174,721 167,192
LIFO reserve (85,335) (64,979) (82,627)
________ ________ ________
$420,493 $398,137 $446,609
(4) INCOME TAXES. Effective as of January 1, 1993, the Company adopted new
Financial Accounting Standards Board requirements that govern the way
deferred taxes are calculated and reported. Adoption of these
requirements entailed a one-time adjustment that had no effect on the
Company's first quarter 1993 net loss.
The components of the net deferred tax liability on the Company's Balance
Sheet were determined as follows:
March 31 December 31
1994 1993 1993
Assets Liabil. Assets Liabil. Assets Liabil.
(expressed in millions)
Operating loss
carryover $201.3 $ - $ 73.2 $ - $169.8 $ -
Employee benefits 100.8 16.0 91.8 13.0 98.3 17.4
Property and equipment
and timber and
timberlands 87.8 591.5 87.6 548.8 89.0 589.4
Alternative minimum tax 79.8 - 93.1 - 79.8 -
Tax credit carryovers 46.8 - 44.3 - 47.2 -
Reserves 10.7 1.6 12.7 1.0 11.6 1.5
Inventories 9.8 .4 12.9 .5 9.7 .4
State income taxes 4.2 29.7 4.7 23.9 3.9 29.0
Deferred charges .3 13.4 .4 17.4 .3 14.6
Differences in basis
of nonconsolidated
entities - 18.9 - - - 17.9
Other 10.5 34.1 7.1 52.6 9.8 32.9
______ ______ ______ ______ ______ ______
$552.0 $705.6 $427.8 $657.2 $519.4 $703.1
At March 31, 1994, Canadian subsidiaries of the Company had $180,398,000
of undistributed earnings which have been indefinitely reinvested. It is
not practical to make a determination of the additional U.S. income taxes
that would be due upon remittance of these earnings until the remittance
occurs.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
First Quarter of 1994 Compared With First Quarter of 1993
Boise Cascade Corporation reported a net loss of $37.6 million, or $1.35 per
fully diluted common share, in the first quarter of 1994, compared with a loss
of $12.1 million, or 56 cents per share, in the first quarter of 1993. Results
for the first quarter of 1993 included a pretax gain of $8.6 million, or
14 cents per fully diluted share, from an asset sale.
Sales for the first quarter of 1994 increased to $1.014 billion, compared with
$984 million in the same period of the prior year.
The paper segment operating loss for the first quarter was $69.7 million,
compared with a loss of $43.6 million in the first quarter of 1993.
Manufacturing costs were up from the comparison period because of severe winter
weather, maintenance and lack-of-order downtime, and related operating
difficulties at some facilities.
Despite a slight increase in sales volumes in the first quarter, compared with
first and fourth quarters of 1993, sales revenues for the segment were
essentially flat relative to sales in comparison quarters. Average quarterly
per ton paper prices of the Company's major paper grades, uncoated free sheet
and coated papers, fell more than five percent from fourth quarter 1993 levels.
Average prices for newsprint and uncoated groundwood papers also declined, while
prices for containerboard and market pulp rose during the quarter from fourth
quarter levels.
Office products first quarter 1994 segment income was $10.9 million on sales of
$191 million, compared with income of $9.8 million on sales of $169 million in
the first quarter of 1993. The increase in dollar sales volume was due to
additional sales from existing locations as well as from new and recently
acquired facilities.
Building products operating income declined from $62.4 million for the year-
ago first quarter to $35 million as delivered log costs, driven by constricted
timber supply in the Northwest, continued to increase. Segment sales rose
slightly to $395 million for the first three months of 1994 from $382 million
for the same period in 1993.
Total long- and short-term debt outstanding at March 31, 1994, was $2.1 billion,
substantially unchanged from the amounts outstanding at the same date in the
prior year and at December 31, 1993. Interest expense for the first three
months of 1994 of $36.4 million was down modestly from that of first quarter
last year. The effective tax benefit rate for the first quarter of 1994 was
40 percent, compared with a benefit rate of 38 percent for the same period in
the prior year.
Working capital decreased from $351 million at March 31, 1993, to $142 million
at March 31, 1994, primarily due to an increase in the current portion of long-
term debt. The increase in current portion reflected amounts that were due
pursuant to an expiring revolving credit agreement. That agreement was replaced
with a new revolving credit agreement in April 1994. Working capital available
at December 31, 1993, was $199 million. Cash provided by operations for the
first three months of 1994 was $4.1 million, compared with $47.4 million in the
same period of the prior year.
At March 31, 1994, the Company and one of its Canadian subsidiaries had two
unsecured revolving credit agreements outstanding that permitted borrowings of
up to $880 million of which a total of $385 million was outstanding. During
April 1994, the Company entered into a new $650 million unsecured revolving
credit agreement which replaced its $750 million agreement. The new revolving
credit agreement was effective as of April 15, 1994. This agreement expires in
June 1997, and any amounts outstanding are payable at that time. Also in April,
the $130 million Canadian subsidiary agreement was terminated, and the Canadian
subsidiary promptly entered into short-term loans for an aggregate of
$150 million which, unless extended, are payable on demand by the lenders on or
after June 1, 1994.
The new revolving credit agreement requires the Company to maintain a minimum
amount of net worth and not to exceed a maximum ratio of debt to net worth. If
the new agreement had been outstanding at March 31, 1994, the Company's net
worth would have exceeded the defined minimum amount by $185,854,000. The
payment of dividends by the Company is dependent upon the existence of and the
amount of net worth in excess of the defined minimum under this agreement. The
Company is also required to maintain a defined minimum interest coverage in each
successive four-quarter period, which the Company met at March 31, 1994. The
cyclical downturn the Company has been experiencing has reduced the Company's
interest coverage. While the Company currently expects to continue to meet the
coverage in each of the succeeding quarters in 1994, there can be no assurance
as to the results of operations during the balance of 1994.
The Company intends to combine the majority of its newsprint, uncoated
groundwood and related assets into its wholly owned Canadian subsidiary,
Boise Cascade Canada Ltd. The transaction will be structured so that the
Canadian company will be independently managed with its own access to financial
markets so that it can independently fund its capital investment requirements.
The Canadian company currently includes pulp and paper mills in Fort Frances
and Kenora, Ontario, and long-term harvesting rights on 3.1 million acres of
timberland in Ontario. As part of this transaction, Boise Cascade Canada will
purchase the Company's pulp and paper mill along with a deinked recycled pulp
facility, both of which are located in Steilacoom (West Tacoma), Washington. In
addition,the Canadian company will enter into an exclusive newsprint marketing
agreement with the Company to purchase, at a brokerage discount for resale to
the Canadian company's customers, all of the newsprint produced at the Company's
pulp and paper mill located in DeRidder, Louisiana.
The Company will use proceeds from the transaction to reduce debt and for
general corporate purposes. The details of the transaction have not been
finalized.
Capital expenditures for property and equipment and timber and timberlands were
$48.5 million during the first three months of 1994, compared with $49.6 million
for the same period in the prior year and $221.5 million for the year ended
December 31, 1993.
An expanded discussion and analysis of financial condition is presented on pages
16 and 17 of the Company's 1993 Annual Report under the captions "Financial
Condition" and "Capital Investment."
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
The Company is involved in litigation and administrative proceedings primarily
arising in the normal course of its business. In the opinion of management,
the Company's recovery, if any, or the Company's liability, if any, under any
pending litigation or administrative proceeding would not materially affect its
financial condition or operations.
Item 2. Changes in Securities
At March 31, 1994, the Company and one of its Canadian subsidiaries had two
unsecured revolving credit agreements outstanding that permitted borrowings of
up to $880 million of which a total of $385 million was outstanding. During
April 1994, the Company entered into a new $650 million unsecured revolving
credit agreement which replaced its $750 million agreement. The new revolving
credit agreement was effective as of April 15, 1994. This agreement expires in
June 1997, and any amounts outstanding are payable at that time. Also in April,
the $130 million Canadian subsidiary agreement was terminated, and the Canadian
subsidiary promptly entered into short-term loans for an aggregate of
$150 million which, unless extended, are payable on demand by the lenders on or
after June 1, 1994.
The new revolving credit agreement requires the Company to maintain a minimum
amount of net worth and not to exceed a maximum ratio of debt to net worth. If
the new agreement had been outstanding at March 31, 1994, the Company's net
worth would have exceeded the defined minimum amount by $185,854,000. The
payment of dividends by the Company is dependent upon the existence of and the
amount of net worth in excess of the defined minimum under this agreement. The
Company is also required to maintain a defined minimum interest coverage in each
successive four-quarter period, which the Company met at March 31, 1994. The
cyclical downturn the Company has been experiencing has reduced the Company's
interest coverage. While the Company currently expects to continue to maintain
the coverage in each of the succeeding quarters in 1994, there can be no
assurance as to the results of operations during the balance of 1994.
Item 3. Defaults Upon Senior Securities
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable.
Item 5. Other Information
During the first quarter of 1994, the Company and production and maintenance
workers at its International Falls, Minnesota, pulp and paper mill agreed to
five-year contract extensions. The agreements are effective until April 1999.
In March 1994, the Company reached new labor agreements effective until mid-
1998 at its pulp and paper mill in Fort Frances, Ontario, Canada.
Collective bargaining agreements at the Company's four Pacific Northwest pulp
and paper facilities and one converting operation expired in the spring of
1993. The Company is operating these mills without signed collective bargaining
agreements. On February 1, 1994, the Company implemented its final contract
offer at its Wallula, Washington, paper mill. The Company is in negotiations
with unions representing employees at these facilities. While the Company
believes that the Pacific Northwest negotiations can be resolved without work
stoppages or strikes, it is not possible at this time to predict how the
negotiations may conclude.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
A list of the exhibits required to be filed as part of this report
is set forth in the Index to Exhibits, which immediately precedes
such exhibits, and is incorporated herein by this reference.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the quarter ended
March 31, 1994.
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.
BOISE CASCADE CORPORATION
As Duly Authorized Officer and
Chief Accounting Officer: /s/Tom E. Carlile
Tom E. Carlile
Vice President and Controller
Date: May 11, 1994
BOISE CASCADE CORPORATION
INDEX TO EXHIBITS
Filed With the Quarterly Report on Form 10-Q
for the Quarter Ended March 31, 1994
Number Description Page Number (1)
4.1(2) Trust Indenture between Boise Cascade
Corporation and Morgan Guaranty Trust Company
of New York, Trustee, dated October 1, 1985,
as amended -
4.2 1994 Revolving Loan Agreement -- $650,000,000,
dated April 15, 1994 12
4.3(3) Shareholder Rights Agreement, as amended
September 25, 1990 -
4.4(4) Certificate of Designation of Convertible
Preferred Stock, Series D, dated July 10, 1989 -
4.5(5) Certificate of Designation of Conversion Preferred
Stock, Series E, dated January 21, 1992 -
4.6(6) Certificate of Designation of Cumulative Preferred
Stock, Series F, dated January 29, 1993 -
4.7(7) Certificate of Designation of Conversion Preferred
Stock, Series G, dated September 29, 1993 -
12 Ratio of Earnings to Fixed Charges 76
20(8) Selected financial statements from Boise
Cascade Corporation's Report to Shareholders
for the First Quarter of 1994 80
(1) This information appears only in the manually signed original of the
report on Form 10-Q.
(2) The Trust Indenture between Boise Cascade Corporation and Morgan
Guaranty Trust Company of New York, Trustee, dated October 1, 1985, was
filed as Exhibit 4 in the Registration Statement on Form S-3,
No. 33-5673, filed May 13, 1986. The First Supplemental Indenture,
dated December 20, 1989, to the Trust Indenture was filed as
Exhibit 4.2 in the Pre-Effective Amendment No. 1 to the Registration
Statement on Form S-3, No. 33-32584, filed December 20, 1989. The
Second Supplemental Indenture, dated August 1, 1990, to the Trust
Indenture was filed as Exhibit 4.1 in the Company's Current Report on
Form 8-K filed on August 10, 1990. Each of the above documents
referenced in this footnote is incorporated herein by this reference.
(3) The Rights Agreement, amended as of September 25, 1990, was filed as
Exhibit 1 in the Company's Form 8-K filed with the Securities and
Exchange Commission on September 25, 1990, and is incorporated herein
by this reference.
(4) The Certificate of Designation of Convertible Preferred Stock,
Series D, dated July 10, 1989, was filed as Exhibit 4.4 in the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1989, and is incorporated herein by this reference.
(5) The Certificate of Designation of Conversion Preferred Stock,
Series E, dated January 21, 1992, was filed as Exhibit 3.3 in the
Company's Report on Form 10-K for the year ended December 31, 1991,
and is incorporated herein by this reference.
(6) The Certificate of Designation of Cumulative Preferred Stock,
Series F, dated January 29, 1993, was filed as Exhibit 3.4 in the
Company's Report on Form 10-K for the year ended December 31, 1993,
and is incorporated herein by this reference.
(7) The Certificate of Designation of Conversion Preferred Stock,
Series G, dated September 22, 1993, was filed as Exhibit 3.6 in the
Company's Report on Form 10-K for the year ended December 31, 1993,
and is incorporated herein by this reference.
(8) The Balance Sheets, Statements of Loss, and Statements of Cash Flows
are unaudited financial statements produced as a part of Boise Cascade
Corporation's 1994 Report to Shareholders for the First Quarter.
1994 REVOLVING LOAN AGREEMENT
Dated as of April 15, 1994
among
BOISE CASCADE CORPORATION,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Domestic Administrative Agent,
NATIONAL WESTMINSTER BANK PLC,
as Foreign Administrative Agent
and
THE FINANCIAL INSTITUTIONS PARTIES THERETO
BOISE CASCADE CORPORATION
1994 REVOLVING LOAN AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1.DEFINITIONS. . . . . . . . . . . . . . . . . . . . . .1
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . .1
SECTION 2.REPRESENTATIONS. . . . . . . . . . . . . . . . . . . 10
2.1 Representations as of Date of Agreement. . . . . . . 10
2.1.1 Subsidiaries . . . . . . . . . . . . . . . . . 10
2.1.2 Annual Reports and Financial Information . . . 11
2.1.3 Changes in Condition; Full Disclosure. . . . . 11
2.1.4 Title to Properties and Stock of
Subsidiaries . . . . . . . . . . . . . . . . . 11
2.1.5 Litigation . . . . . . . . . . . . . . . . . . 11
2.1.6 Tax Returns. . . . . . . . . . . . . . . . . . 11
2.1.7 Credit Ratings . . . . . . . . . . . . . . . . 12
2.1.8 ERISA Compliance . . . . . . . . . . . . . . . 12
2.1.9 No Defaults. . . . . . . . . . . . . . . . . . 12
2.1.10 Environmental Matters. . . . . . . . . . . 12
2.2 Representations for Closing and Incremental
Borrowing. . . . . . . . . . . . . . . . . . . . . . 13
2.2.1 Organization and Good Standing of Company
and Material Subsidiaries. . . . . . . . . . . 13
2.2.2 Regulation U . . . . . . . . . . . . . . . . . 13
2.2.3 Authorization; Enforceability. . . . . . . . . 13
2.2.4 Governmental Consent . . . . . . . . . . . . . 13
2.2.5 Public Utility Holding Company Act and
Investment Company Act . . . . . . . . . . . . 13
SECTION 3.TERMS OF CREDIT. . . . . . . . . . . . . . . . . . . 13
3.1 Commitment to Lend . . . . . . . . . . . . . . . . . 13
3.2 Reduction of Commitments . . . . . . . . . . . . . . 14
3.2.1 Mandatory Reductions . . . . . . . . . . . . . 14
3.2.2 Optional Reductions. . . . . . . . . . . . . . 14
3.3 Commitment Fees. . . . . . . . . . . . . . . . . . . 14
3.4 Method of Borrowing. . . . . . . . . . . . . . . . . 14
3.4.1 Incremental Borrowings . . . . . . . . . . . . 14
3.4.2 Other Borrowings . . . . . . . . . . . . . . . 15
3.4.3 Repayments; Deemed Election. . . . . . . . . . 15
3.4.4 Notice Irrevocable; Effect of Notice . . . . . 15
3.4.5 Notice to Banks. . . . . . . . . . . . . . . . 16
3.5 Repayment and Prepayment . . . . . . . . . . . . . . 16
3.5.1 Repayment. . . . . . . . . . . . . . . . . . . 16
3.5.2 Prepayment . . . . . . . . . . . . . . . . . . 16
3.6 Calculation and Payment of Interest. . . . . . 16
3.7 Payments . . . . . . . . . . . . . . . . . . . . . . 17
3.8 Pro Rata Treatment; Sharing. . . . . . . . . . . . . 18
3.8.1 Pro Rata Treatment . . . . . . . . . . . . . . 18
3.8.2 Sharing. . . . . . . . . . . . . . . . . . . . 18
3.9 Loan Accounts and Notes. . . . . . . . . . . . . . . 18
3.10 Illegality and Change in Law . . . . . . . . . . . . 18
3.10.1 Illegality . . . . . . . . . . . . . . . . 18
3.10.2 Change in Law. . . . . . . . . . . . . . . 18
3.10.3 Increased Risk-Based Capital Cost. . . . . 19
3.11 U.S. Tax Treaty Certificate. . . . . . . . . . . . . 20
3.12 Compensation for Special Reserve Requirements and
Taxes. . . . . . . . . . . . . . . . . . . . . . . . 20
3.13 Unavailability of Rates. . . . . . . . . . . . . . . 21
3.14 Interest Limitation. . . . . . . . . . . . . . . . . 21
3.15 Assignments; Delegation of Lending Commitments;
Participations . . . . . . . . . . . . . . . . . . . 21
3.16 Special Mandatory Prepayment . . . . . . . . . . . . 22
3.16.1 Change in the Board. . . . . . . . . . . . 22
3.16.2 Change in Shareholders . . . . . . . . . . 22
3.17 Lending Offices. . . . . . . . . . . . . . . . . . . 22
3.18 Survival . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 22
4.1 Initial Loans. . . . . . . . . . . . . . . . . . . . 22
4.1.1 Notes. . . . . . . . . . . . . . . . . . . . . 22
4.1.2 Signatures . . . . . . . . . . . . . . . . . . 23
4.1.3 Opinion of Company's General Counsel . . . . . 23
4.1.4 Proof of Corporate Action. . . . . . . . . . . 23
4.1.5 Officer's Certificate. . . . . . . . . . . . . 23
4.1.6 Opinion of Special Counsel to the
Administrative Agents. . . . . . . . . . . . . 23
4.1.7 Notice of Borrowing. . . . . . . . . . . . . . 23
4.1.8 Prior Revolving Loan Agreement . . . . . . . . 23
4.1.9 Boise Cascade Canada Ltd. Revolving Credit
Agreement. . . . . . . . . . . . . . . . . . . 23
4.1.10 Credit Agreement . . . . . . . . . . . . . 23
4.2 Incremental Borrowings . . . . . . . . . . . . 23
4.2.1 Absence of Default . . . . . . . . . . . . . . 23
4.2.2 Notice . . . . . . . . . . . . . . . . . . . . 23
4.3 Other Borrowings . . . . . . . . . . . . . . . . . . 23
SECTION 5.AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . 24
5.1 Information and Reports to be Furnished by the
Company. . . . . . . . . . . . . . . . . . . . . . . 24
5.1.1 Quarterly Reports. . . . . . . . . . . . . . . 24
5.1.2 Annual Statements. . . . . . . . . . . . . . . 24
5.1.3 Compliance Certificate and Computations. . . . 24
5.1.4 Credit Rating. . . . . . . . . . . . . . . . . 24
5.1.5 Reports to Stockholders. . . . . . . . . . . . 24
5.1.6 Miscellaneous Information; Inspection. . . . . 25
5.1.7 Notice of Event of Default . . . . . . . . . . 25
5.1.8 ERISA. . . . . . . . . . . . . . . . . . . . . 25
5.1.9 Litigation . . . . . . . . . . . . . . . . . . 25
5.2 Accounts . . . . . . . . . . . . . . . . . . . . . . 25
5.3 Prompt Payment of Indebtedness . . . . . . . . . . . 25
5.4 Conduct of Business and Corporate Existence. . . . . 26
5.5 Maintenance of Property and Leases . . . . . . . . . 26
5.6 Insurance. . . . . . . . . . . . . . . . . . . . . . 26
5.7 Use of Proceeds. . . . . . . . . . . . . . . . . . . 27
SECTION 6.FINANCIAL COVENANTS. . . . . . . . . . . . . . . . . 27
6.1 Senior Funded Debt . . . . . . . . . . . . . . . . . 27
6.1.1 Maximum Leverage Ratio . . . . . . . . . . . . 27
6.1.2 Interest Coverage Ratio. . . . . . . . . . . . 27
6.2 Restrictions on Secured Debt . . . . . . . . . . . . 27
6.3 Minimum Tangible Net Worth . . . . . . . . . . . . . 28
6.4 Consolidation, Merger, and Sale of All Assets. . . . 28
SECTION 7.DEFAULT
7.1 Events of Default. . . . . . . . . . . . . . . . . . 29
7.2 Acceleration of Loans. . . . . . . . . . . . . . . . 30
SECTION 8.THE ADMINISTRATIVE AGENTS. . . . . . . . . . . . . . 30
8.1 Appointment and Authorization. . . . . . . . . . . . 30
8.2 Delegation of Duties. . . . . . . . . . . . . . . 31
8.3 Liability of Administrative Agents . . . . . . . . . 31
8.4 Reliance by Administrative Agents. . . . . . . . . . 31
8.5 Notice of Default. . . . . . . . . . . . . . . . . . 31
8.6 Credit Decision. . . . . . . . . . . . . . . . . . . 32
8.7 Indemnification. . . . . . . . . . . . . . . . . . . 32
8.8 Administrative Agents in Individual Capacity . . . . 33
8.9 Successor Administrative Agents. . . . . . . . . . . 33
SECTION 9.MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 33
9.1 Waivers. . . . . . . . . . . . . . . . . . . . . . . 33
9.2 Expenses . . . . . . . . . . . . . . . . . . . . . . 33
9.3 Offsets. . . . . . . . . . . . . . . . . . . . . . . 33
9.4 Governing Law. . . . . . . . . . . . . . . . . . . . 34
9.5 Counterparts . . . . . . . . . . . . . . . . . . . . 34
9.6 Notices. . . . . . . . . . . . . . . . . . . . . . . 34
9.7 Amendments . . . . . . . . . . . . . . . . . . . . . 34
9.8 Successors . . . . . . . . . . . . . . . . . . . . . 35
9.9 Assignment . . . . . . . . . . . . . . . . . . . . . 35
9.10 Dispositions . . . . . . . . . . . . . . . . . . . . 35
9.11 Effective Date . . . . . . . . . . . . . . . . . . . 35
9.12 Consent to Jurisdiction. . . . . . . . . . . . . . . 35
9.13 Confidentiality. . . . . . . . . . . . . . . . . . . 35
9.14 Interpretation . . . . . . . . . . . . . . . . . . . 36
9.15 Entire Agreement . . . . . . . . . . . . . . . . . . 36
9.16 Waiver of Jury Trial . . . . . . . . . . . . . . . . 37
BOISE CASCADE CORPORATION
1994 REVOLVING LOAN AGREEMENT
DATED AS OF APRIL 15, 1994
REVOLVING LOAN AGREEMENT dated as of April 15, 1994, among
BOISE CASCADE CORPORATION, a Delaware corporation having its
principal office at One Jefferson Square, Boise, Idaho 83702
(herein called the "Company") and the undersigned banks (herein
collectively called the "Banks"), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (in its capacity as the Domestic
Administrative Agent) and NATIONAL WESTMINSTER BANK PLC, Los
Angeles Overseas Branch (in its capacity as the Foreign
Administrative Agent).
The Company has requested the Banks to extend credit to the
Company for the general corporate purposes of the Company. The
Banks are prepared to extend credit as requested by the Company,
on the terms hereof, and, accordingly, the parties agree as
follows:
SECTION 1. DEFINITIONS
1.1 Certain Defined Terms. The following definitions
shall apply throughout this Agreement:
"Administrative Agents" means the Foreign
Administrative Agent and the Domestic Administrative Agent.
"Affiliate" of a specified Person means any other
Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with the Person specified.
"Agent-Related Persons" means Bank of America National
Trust and Savings Association, National Westminster Bank Plc, and
any successor agent arising under Section 8, together with their
respective Affiliates and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Bank" means each financial institution which is a
signatory to this Agreement and its successors and assigns
permitted by this Agreement and includes the Administrative
Agents in their capacity as lenders.
"Banking Day" means a day on which banks are required
to be open for business in New York, New York, and San Francisco,
California, United States of America, and transfers of funds can
be made within the Federal Reserve System and with respect to
LIBOR Loans, a day on which dealings in United States dollar
deposits between banks are carried on in London, England, New
York, New York, and San Francisco, California.
"Bankruptcy Code" means the Federal Bankruptcy Reform
Act of 1978 as amended from time to time (11 U.S.C. Section 101,
et seq.).
"Board of Directors" means the board of directors of
the Company.
"Borrowing Rate" means the interest rate applicable to
any Loan determined pursuant to one of the two optional methods
set forth in subparagraphs (a) and (b) below as selected by the
Company pursuant to the provisions of Sections 3.4.1 and 3.4.2 :
(a) LIBOR. If the Company elects to use LIBOR, the
Borrowing Rate shall be equal to the sum of (x) LIBOR for the
Interest Period plus (y) the applicable incremental rate Per
Annum as determined by the Borrowing Rate and Commitment Fee
Table.
(b) Reference Rate. If the Company elects to use the
Reference Rate, the Borrowing Rate shall be equal to the sum of
(x) Reference Rate plus (y) the applicable incremental rate Per
Annum as determined by the Borrowing Rate and Commitment Fee
Table.
(c) The incremental rate as determined by the
Borrowing Rate and Commitment Fee Table shall be established as
of the beginning of each Interest Period and shall be readjusted
during such Interest Period for any changes in the Company's
senior unsecured long-term debt credit rating, effective as of
the date of the announcement of such rating change.
"Borrowing Rate and Commitment Fee Table" means the
following table which provides the pricing level which will be
used to determine the incremental rate Per Annum for the
Borrowing Rate applicable to any Loan and the commitment fee.
PRICING CHART
(expressed in basis points per annum)
Pricing Level Level 1 Level 2 Level 3 Level 4 Level 5
Incremental Rate
Per Annum
LIBOR 55.00 67.50 87.50 112.50 175.00
Reference Rate 0.00 0.00 0.00 0.00 50.00
Commitment Fee 25.00 27.50 32.50 35.00 40.00
Incremental rate Per Annum and commitment fee level description
based on the Company's senior unsecured long-term debt rating as
announced from time to time:
Level 1: Equal to or greater than BBB from S&P and Baa2 from
Moody's.
Level 2: BBB- from S&P and Baa3 from Moody's.
Level 3: BB+ from S&P and Baa3 from Moody's or BBB- from S&P
and Ba1 from Moody's.
Level 4: BB+ from S&P and Ba1 from Moody's.
Level 5: Equal to or less than BB from S&P or Ba2 from Moody's
or no rating available from S&P or Moody's, except as
provided below.
Note: In the event the ratings of the two rating agencies do not
result in the same incremental rate Per Annum or
commitment fee, the credit rating which results in the
higher incremental rate Per Annum or commitment fee shall
be applicable; provided, however, if no rating is
available from S&P or Moody's due to reasons other than
issues relating to the Company, the rating of the
remaining agency shall be used to determine the
incremental rate Per Annum and the commitment fee.
"Broken Interest Period Amount" means in respect of
(i) any failure to borrow following notice given pursuant to
Sections 3.4.1 or 3.4.2 or (ii) any repayment of a LIBOR Loan
which occurs other than at the end of an Interest Period, the
amount by which (a) the interest which would have been received
from the Company on the amount not borrowed or the amount prepaid
in respect of the portion of the Interest Period remaining after
the date of the failure to borrow or prepayment exceeds (b) the
interest which such Bank or Banks could hypothetically obtain by
investing the amount so prepaid or not borrowed in the interbank
dollar market corresponding to the LIBOR Rate in effect at the
time of the failure to borrow or the prepayment for the Loan or
Loans prepaid for the remaining portion of the Interest Period.
The amount of hypothetical interest required for calculation of
clause (b) shall be determined in good faith by the Foreign
Administrative Agent in consultation with the Reference Banks,
which determination shall be conclusive absent manifest error.
If the Foreign Administrative Agent determines that the
calculation required by clause (b) cannot be made because there
is no market for LIBOR interbank dollar deposits as required by
such clause, the Foreign Administrative Agent shall make the
calculation on the basis of such other interbank dollar deposit
market as may be reasonably available upon which to base such
calculation.
"Canadian Entity" means Boise Cascade Canada Ltd. or
the successor thereto.
"Capital Stock" as applied to the stock of any
corporation, means the capital stock of every class whether now
or hereafter authorized, regardless of whether such capital stock
shall be limited to a fixed sum or percentage with respect to the
rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.
CERCLA" means the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
Sections 9601 et seq.).
"Code" means the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder as
from time to time in effect.
"Commitment" means in respect of any Bank the
aggregate amount of money which such Bank is obligated to lend to
the Company pursuant to this Agreement at the time of
determination of such Bank's Commitment including Loans then
outstanding and assuming that all conditions precedent to such
Bank's obligation to lend money have been satisfied. The initial
Commitment of each Bank hereunder shall be the amount set forth
opposite such Bank's signature block at the end of this
Agreement. The Commitment is subject to optional and mandatory
reduction in accordance with Section 3.2.
"Company" shall include and mean not only Boise
Cascade Corporation but also its successive successors and
assigns. Nothing in the foregoing shall authorize any
transaction by the Company which is prohibited by Sections 6.4 or
9.9.
"Consolidated" when used with reference to any term
defined herein, means that term as applied to the accounts of the
Company and its Restricted Subsidiaries unless the language of
any specific provision in which this definition is used shall
indicate a specific intent that the consolidation called for
shall be of the Company and its Subsidiaries. Each such
consolidation shall be prepared in accordance with Generally
Accepted Accounting Principles.
"Domestic Administrative Agent" means Bank of America
National Trust and Savings Association, in its capacity as the
Domestic Administrative Agent, and any successor thereto in such
capacity.
"Domestic Banks" (singly a "Domestic Bank") means the
following Banks:
Bank of America National Trust and Savings Association
Chemical Bank
First Bank National Association
First Interstate Bank of Oregon, N.A.
First Security Bank of Idaho N.A.
Mellon Bank, N.A.
Morgan Guaranty Trust Company of New York
NationsBank
The Chase Manhattan Bank (National Association)
The Northern Trust Company
Wachovia Bank of Georgia, N.A.
West One Bank
"Domestic Lending Office" means, with respect to each
Bank, the office of such Bank or its Affiliate specified as its
"Domestic Lending Office" below its name on the signature pages
hereof or such other office of such Bank or its Affiliate as such
Bank may from time to time specify to the Administrative Agents
and the Company as the office of such Bank or its Affiliate at
which Reference Rate Loans made by such Bank are to be
maintained.
"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, and
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, as amended, and the rules and regulations
promulgated thereunder as from time to time in effect.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) under common control with the Company within
the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) for purposes of provisions relating to
Section 412 of the Code).
"ERISA Event" means any of the following which could
reasonably be expected to result in a Material Adverse Effect on
the Company (a) a Reportable Event with respect to a Pension Plan
or a Multiemployer 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 is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a
plan amendment as a termination under Section 4041 or 4041A of
ERISA or the commencement of proceedings by the PBGC to terminate
a Pension Plan or Multiemployer Plan; (e) a failure by the
Company or any member of the controlled group to make required
contributions to a Pension Plan, Multiemployer Plan or other Plan
subject to Section 412 of the Code; (f) an event or condition
which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer
Plan; (g) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate;
(h) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with
respect to any Plan.
"1989 ESOP" means the amendments to the Company's
Savings and Supplemental Retirement Plan adopted pursuant to a
resolution of its Board of Directors dated May 2, 1989, and the
transactions related thereto, including refinancing by the
Trustee of such plan of any debt incurred in connection
therewith.
"Event of Default" has the meaning given it in Section
7.1.
"Exclusion Date" means the date upon which the Company
makes an irrevocable election to exclude the Canadian Entity from
the definition of Subsidiary for the purposes of this Agreement
(other than for Sections 5.1.1 and 5.1.2 hereof, under which the
Canadian Entity will be treated as a Subsidiary, if it otherwise
meets the definition of Subsidiary), following the sale of at
least 25% of its ownership interest in the Canadian Entity to
nonaffiliated third parties.
"Eurodollar Lending Office" means, with respect to each
Bank, the office of such Bank or its Affiliate specified as its
"Eurodollar Lending Office" below its name on the signature pages
hereof or such other office of such Bank or its Affiliate as such
Bank may from time to time specify to the Administrative Agents
and the Company as the office of such Bank or its Affiliate at
which LIBOR Rate Loans made by such Bank are to be maintained.
"Federal Funds Rate" means, for any day, (a) 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, (b) if 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 Domestic
Administrative Agent in consultation with the Foreign
Administrative Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9 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 Domestic
Administrative Agent, subject to subsequent adjustment to the
rate as determined in (a) above when such rate is available.
"Fiscal Year" and "Fiscal Quarter" means the fiscal
year and fiscal quarter, respectively, used at the time by the
Company for reporting income for purposes of federal taxes based
thereon.
"Foreign Administrative Agent" means National
Westminster Bank PLC, Los Angeles, Overseas Branch, in its
capacity as Foreign Administrative Agent, and any successor
thereto in such capacity.
"Foreign Banks" (singly a "Foreign Bank") means:
National Westminster Bank Plc
ABN-AMRO Bank N.V.
Bank of Montreal
Barclays Bank Plc
CIBC Inc.
Credit Lyonnais
Credit Suisse
Industrial Bank of Japan
Long-Term Credit Bank of Japan
Swiss Bank Corporation
The Royal Bank of Canada
The Toronto-Dominion Bank
Union Bank of Switzerland
"Funds Provided by Operations" means Consolidated Net
Income adjusted for items not affecting net current assets, such
as depreciation and amortization, deferred income taxes, equity
in the earnings or losses of joint ventures and other items of a
similar nature and character determined in accordance with
Generally Accepted Accounting Principles as set forth in the
Company's statement of cash flows.
"Generally Accepted Accounting Principles" 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 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.
"Indebtedness" as applied to any Person means (a) all
indebtedness of such Person for money borrowed, the deferred
purchase price of property, noncontingent obligations in respect
of letters of credit, banker's acceptances, or similar
instruments and leases required to be capitalized pursuant to
Generally Accepted Accounting Principles; and (b) all direct or
indirect, contingent or absolute guarantees by such Person of the
liabilities of others for money borrowed. The term
"Indebtedness" does not include unfunded pension or other
post-retirement liabilities, nor shall it include any amount
recorded on the financial statements of the Company in respect of
the 1989 ESOP. In situations where the Company or a Restricted
Subsidiary guarantees the liability of a Restricted Subsidiary
for money borrowed, the calculation of Indebtedness shall be on a
Consolidated basis.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, receivership,
or relief of debtors, or (b) with respect to the Company,
liquidation, dissolution, or winding up, or (c) any general
assignment for the benefit of creditors, composition, marshalling
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.
"Insurance Company" has the meaning ascribed to it in
Section 5.6.
"Interest Period" means:
(a) LIBOR. With respect to calculation of interest on
Loans subject to LIBOR, a period of either one week or one, two,
three, or six months in duration specified by the Company
pursuant to Section 3.4.1 or 3.4.2; provided, however, if any
LIBOR Interest Period determined pursuant to the preceding
sentence ends on a day which is not a Banking Day, then such
LIBOR Interest Period shall end on the next Banking Day unless
the next succeeding Banking Day is in the next calendar month, in
which event such Interest Period shall end on the last Banking
Day of the calendar month of the day on which it would have
otherwise ended. Provided however, if an Event of Default
exists, the Company may not elect a LIBOR interest period which
exceeds one month.
(b) Reference Rate. With respect to calculation of
interest on Loans subject to the Reference Rate, a period
beginning on the date on which the Loan is made and running to
the last day of the calendar quarter in which the Loan was made;
provided that, the Company may at its option terminate the
Interest Period of any Reference Rate Loan on any date prior to
its normal expiration by giving notice of a reborrowing of funds
owed pursuant to such Loan in accordance with Section 3.4.2 or a
notice of prepayment in accordance with Section 3.5.2.
(c) Duration Provisions. No Interest Period may be
selected by the Company which extends beyond the Termination
Date.
"IRS" means the Internal Revenue Service or any entity
succeeding to any of its principal functions under the Code.
"LIBOR" means for any Interest Period an interest rate
Per Annum which is equal to the arithmetic average (rounded up to
the nearest 1/16 of a percentage point) of the rates of interest
notified to the Foreign Administrative Agent by each of the
Reference Banks as the rate at which United States dollars would
be offered by such Reference Bank to prime banks in the London
interbank market at approximately 11 a.m. London time, two
Banking Days prior to the first day of the applicable Interest
Period for the specified Interest Period and in an amount equal
to the amount of the Loan requested from the Reference Bank. If
any one Reference Bank fails to quote such a rate, the
calculation of LIBOR shall be made on the basis of the rates
quoted by the remaining two Reference Banks. If any two of the
Reference Banks shall be unable or otherwise fail to notify a
rate or shall notify the Foreign Administrative Agent that funds
in an amount equal to the Reference Bank's share of the Loan
requested are not generally available in the LIBOR market, the
Borrowing Rate shall be determined on the basis of the Reference
Rate without prejudice to the right of the Company to reborrow on
the basis of LIBOR once available.
When the Company gives notice of a borrowing specifying
LIBOR as the method of determination of the interest rate, the
Foreign Administrative Agent shall promptly obtain the quotations
from the Reference Banks provided for above, calculate LIBOR and
the Borrowing Rate for the requested Loan and notify the Company
and the Domestic Administrative Agent of the Borrowing Rate
applicable to such Loan. Borrowing Rate calculations for LIBOR
Loans shall be made by the Foreign Administrative Agent in
consultation with the Company.
"LIBOR Loans" means the Loans included in a borrowing
requested by the Company when the borrowing request specifies
that the Borrowing Rate shall be based on LIBOR. Each such Loan
is referred to as a "LIBOR Loan".
"Loan" means, in respect of any Bank, each separate
advance of funds made by such Bank to the Company pursuant to a
request for a borrowing by the Company made pursuant to Section
3.4.1 or 3.4.2. Each reborrowing made by the Company pursuant to
Section 3.4.2 or 3.4.3 shall constitute a separate Loan.
"Majority Banks" means at any time and for any specific
purpose the Bank or Banks holding at least 66 2/3% in aggregate
unpaid principal amounts of the Loans, or, if no Loans are at the
time outstanding, the Bank or Banks having at least 66 2/3% of
the aggregate Commitments.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U, or X of the Federal Reserve Board.
"Material Adverse Effect" means (i) a material adverse
change in or a material adverse effect upon the operations,
business, properties, condition (financial or otherwise) or
prospects of the Company or the Company and its Subsidiaries
taken as a whole; (ii) a material impairment of the ability of
the Company to perform under this Agreement and to avoid any
Event of Default; or (iii) a material adverse effect upon the
legality, validity, binding effect or enforceability against the
Company of this Agreement.
"Material Subsidiary" means, at any time, any
Subsidiary where the Company's investment in the Subsidiary, as
of the last day of the preceding fiscal quarter, shall exceed 10%
of Consolidated Net Tangible Assets of the Company and its
Restricted Subsidiaries, in each case, based upon the Company's
most recent annual or quarterly financial statements delivered
under Section 5.1.
"Moody's" means Moody's Investors Service.
"Multiemployer Plan" means a "multiemployer plan"
(within the meaning of Section 4001(a)(3) of ERISA) and 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 Income" for any period means the net income (or
loss) of the Person or Persons referred to before extraordinary
items, determined in accordance with Generally Accepted
Accounting Principles but excluding any income (or loss)
attributable to the Canadian Entity after the Exclusion Date.
"Net Tangible Assets" means with respect to any Person
the aggregate amount of assets (less applicable reserves and
other properly deductible items) of such Person after deducting
therefrom (i) liabilities other than (x) deferred income taxes,
(y) Indebtedness, and (z) liabilities in respect of the 1989
ESOP; (ii) goodwill, trade names, trademarks, patents and
organization expenses; and (iii) Restricted Investments, all as
recorded in the books and records of such Person kept in
accordance with Generally Accepted Accounting Principles. For
purposes of this definition, the term "liability" shall not
include amounts recorded on the Company's balance sheet under the
headings "Shareholders' Equity" and "Mandatory Redeemable
Preferred Stock."
"Notes" means the promissory notes of the Company
delivered to the Banks pursuant to Section 3.9, if any such
promissory notes are requested.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any of its principal functions under
ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA which the
Company or any ERISA Affiliate sponsors, maintains, or to which
it makes, is making, or is obligated to make contributions, or in
the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five (5) plan years, but
excluding any Multiemployer Plan.
"Per Annum" as to LIBOR, Reference Rate Loans based on
the Federal Funds Rate, and the commitment fee means a
calculation based on a year having 360 days, for the actual days
elapsed and, as to the Reference Rate (except where based on the
Federal Funds Rate), a calculation based on a year having 365
days or 366 days, as the case may be, for the actual days
elapsed.
"Person" means a corporation, association, joint
venture, partnership, trust, organization, business, individual
or government or any governmental agency or political subdivision
thereof.
"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.
"Principal Financial Officer" means the Chairman of the
Board, any vice president in charge of financial affairs, the
Treasurer or the Controller of the Company. The term "Officers'
Certificate" shall mean a certificate signed by a Principal
Financial Officer.
"Principal Property" means (a) any mill, converting
plant, manufacturing plant or other facility owned at the date
hereof or hereafter acquired by the Company or any Restricted
Subsidiary of the Company which is located within the present 50
states of the United States of America or Canada and the gross
book value (including related land and improvements thereon and
all machinery and equipment included therein without deduction of
any depreciation reserves) of which on the date as of which the
determination is being made exceeds 5% of Consolidated Net
Tangible Assets, and (b) Timberlands, in each case other than (i)
any property which is designated in a resolution of the Board of
Directors as not being of material importance to the total
business conducted by the Company as an entirety or (ii) any
portion of a particular property which is similarly found not to
be of material importance to the use or operation of such
property or (iii) any minerals or mineral rights.
"Reference Banks" means the Administrative Agents and
Union Bank of Switzerland.
"Reference Rate" for any day means the greater of (a)
the daily Federal Funds Rate for such day plus .50% Per Annum or
(b) the arithmetic average (rounded if necessary to the nearest
1/100 of a percentage point) of the interest rate publicly
announced by each Administrative Agent to be its "reference rate"
or "prime rate," as the case may be, for such day.
Any change in the rates quoted by either of the
Administrative Agents as their "prime rate" or their "reference
rate" shall take effect on the day specified in the public
announcement of such change.
"Reference Rate Loans" means the Loans included in a
borrowing requested by the Company when the borrowing request
specifies that the Borrowing Rate shall be based on the Reference
Rate. Each such Loan is referred to as a "Reference Rate Loan."
"Reportable Event" means, any of the events set forth
in Section 4043(b) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirements
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.
"Restricted Investments" means investments in
Unrestricted Subsidiaries and Securities other than:
(a) Investments in Restricted Subsidiaries;
(b) Investments in prime grade marketable Securities;
(c) Current assets arising from the sale of goods and
services in the ordinary course of business; and
(d) Investments in Persons which within 18 months of
the first investment become Restricted Subsidiaries.
"Restricted Subsidiary" means a Subsidiary of the
Company substantially all the property of which is located, or
substantially all the business of which is carried on, within the
present 50 states of the United States of America or Canada;
provided, however, there shall be excluded (i) Subsidiaries
substantially all of whose assets consist of loans to the Company
and its Subsidiaries from funds obtained by borrowings,
guaranteed by the Company, and (ii) any Subsidiary declared by
the Board of Directors to be an Unrestricted Subsidiary,
provided, however, at the time of declaration there can be no
Event of Default and the Company must be able to incur $1 of
additional Senior Funded Debt under the terms of this Agreement.
Any Subsidiary declared an Unrestricted Subsidiary may later be
declared a Restricted Subsidiary by a Principal Financial
Officer, provided that there is no Event of Default and the
Company is able to incur $1 of additional Senior Funded Debt
under the terms of this Agreement.
"S&P" means Standard & Poor's Corporation.
"Securities" means any stock, shares or other form of
equity ownership interest in any Person, any bonds, debentures,
notes or other indebtedness for money borrowed issued by any
Person and any guarantee of any of the foregoing or any warrant,
option or other right to subscribe for or purchase any of the
foregoing. Any of the foregoing rights and interests shall be
treated as a Security for purposes of this Agreement whether or
not they are evidenced by a certificate or other written
instrument or agreement.
"Senior Funded Debt" means Indebtedness that is not
subordinated in right of payment to the Loans and is classified,
in accordance with Generally Accepted Accounting Principles, as
long-term debt (and the current portion thereof) as of the date
of determination. Senior Funded Debt shall also include all
direct or indirect, contingent, or absolute guarantees by the
Company or a Restricted Subsidiary other than guarantees with
respect of the 1989 ESOP.
"Special Counsel to the Administrative Agents" means
Pillsbury Madison & Sutro.
"Subsidiary" or "Subsidiaries" means any Person of
which the Company and/or any of its other Subsidiaries (as herein
defined) directly or indirectly owns at the time at least a
majority of the outstanding stock or shares of beneficial
interest having by the terms thereof ordinary voting power to
elect a majority of the directors (or other persons performing
similar functions) of such Person, irrespective of whether or not
at the time shares of any other class or classes of such Person
shall have or might have voting power by reason of the happening
of any contingency. Cuban Electric Company, a Florida
corporation; Far East Power Company, a Delaware corporation;
Shanghai Power Company, a Delaware corporation; and Western
District Power Company of Shanghai, Federal Inc., USA, a China
Trade Act corporation, or any trust created to liquidate any of
such corporations, shall not be deemed to be "Subsidiaries" so
long as neither the Company nor any other Subsidiary shall have
outstanding any investment in said corporations (other than
investments existing on December 31, 1972) or any guaranty of the
Indebtedness of any such corporation.
"Tangible Net Worth" means in respect of any Person the
gross book value of the assets of such Person (exclusive of
goodwill, patents, trademarks, and trade names and organization
expenses) less (a) reserves applicable thereto and (b) all
liabilities (including accrued and deferred income taxes and
subordinated indebtedness, but excluding all liabilities recorded
in respect of the 1989 ESOP), all as recorded in the books and
records of such Person kept in accordance with Generally Accepted
Accounting Principles. For purposes of this definition, the term
liabilities does not include amounts recorded on the Company's
balance sheet under the headings "Shareholders' Equity" and
"Mandatory Redeemable Preferred Stock." After the Exclusion
Date, Tangible Net Worth shall exclude any investment in the
Canadian Entity. After the Exclusion Date, if Generally Accepted
Accounting Principles require the Canadian Entity's financial
results to be Consolidated, the assets and liabilities of the
Canadian Entity shall be excluded when calculating Tangible Net
Worth.
"Termination Date" means June 30, 1997, or any earlier
date established under Section 3.2.2, 3.16 or 7.2 if the
Commitments of all Banks are terminated in full.
"Timberlands" means any real property of the Company or
any Restricted Subsidiary of the Company located within the
present 50 states of the United States of America or Canada,
which directly provides a material portion of the fiber required
to operate any mill, converting plant, manufacturing plant or
other facility included in subsection (a) of the definition of
Principal Property and which contains standing timber which is
(or upon completion of a growth cycle then in process is expected
to become) of a commercial quantity and of merchantable quality,
excluding, however, any such real property which at the time of
determination is held primarily for development or sale, and not
primarily for the production of forest products.
"Unfunded Pension Liability" means the excess of a
Pension Plan's benefit liabilities under Section 4001(a)(16) of
ERISA, over the current value of that Plan's assets, determined
in accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable plan
year.
"Unrestricted Subsidiary" means any Subsidiary in whom
the Company or any Subsidiary has an investment other than a
Restricted Subsidiary. As of April 15, 1994, the Company had no
Unrestricted Subsidiaries.
SECTION 2. REPRESENTATIONS
2.1 Representations as of Date of Agreement. The Company
represents and warrants that as of the date hereof:
2.1.1 Subsidiaries. The Company has heretofore
furnished to the Administrative Agents a correct list of all
Subsidiaries as of December 31, 1993 (excepting those whose total
assets are less than $10,000,000 individually and $25,000,000
collectively), and except as set forth on such list, and except
for directors' qualifying shares, the Company and/or another
Subsidiary or Subsidiaries owns, with unrestricted right to vote,
all of the issued and outstanding shares of voting stock of each
such Subsidiary, and all such shares of stock of any such
Subsidiary have been duly authorized and issued and are fully
paid and nonassessable.
2.1.2 Annual Reports and Financial Information.
There have been furnished to each Bank copies of the Consolidated
balance sheets of the Company and its Subsidiaries (when and as
acquired) at December 31 in the years 1990 through 1993,
inclusive, and the related statements of Consolidated income,
cash flow, and additional paid-in capital and retained earnings
or shareholders' equity for said years, all certified by Arthur
Andersen & Co. Such financial statements (including any related
schedules or notes) are true and correct in all material respects
and have been prepared in accordance with Generally Accepted
Accounting Principles followed throughout the periods involved
and show all liabilities, direct and contingent, of the Company
and its Subsidiaries required to be shown in accordance with such
principles. The balance sheets fairly present the condition of
the Company and its Subsidiaries as of the dates thereof, and the
statements of income, or cash flow and additional paid-in capital
and retained earnings or shareholders' equity fairly present the
results of the operations of the Company and its Subsidiaries for
the periods indicated. There have also been furnished to each
Bank copies of the annual reports of the Company on Form 10-K as
filed with the Securities and Exchange Commission for the years
1990 through 1993. Such annual reports contain all information
required to be contained therein as of the respective dates
thereof and do not contain any statement which at the time and in
light of the circumstances under which it was made was false or
misleading with respect to any material fact.
2.1.3 Changes in Condition; Full Disclosure.
(a) Since December 31, 1993, there has been no material adverse
change in the business, condition or operations (financial or
otherwise) of the Company, or of the Company and its Subsidiaries
on a combined basis except as otherwise disclosed to the Banks in
writing prior to the date of this Agreement; and (b) the
financial statements referred to in Section 2.1.2 do not, nor
does this Agreement or any written statement furnished by the
Company to each Bank in connection with the making of the Loans,
contain any untrue statement of a material fact or omit a
material fact necessary to make the statements contained therein
or herein not misleading; provided, however, it is understood
that the Company is in no way representing or warranting the
accuracy of any forecast or financial projection contained in any
of the foregoing.
2.1.4 Title to Properties and Stock of
Subsidiaries. The Company and its Subsidiaries, respectively,
have good and merchantable title in fee to such of the fixed
assets as are real property, and good and merchantable title to
the other assets, reflected in the Consolidated balance sheet at
December 31, 1993, referred to in Section 2.1.2, or acquired
since said date (except for certain properties disposed of since
said date in the ordinary course of business), subject to no
mortgage, pledge, charge, lien, security interest or other
encumbrance except as such are permitted by this Agreement. The
Company or a Subsidiary, as the case may be, has good title to
the outstanding shares of Capital Stock of its Subsidiaries,
subject to no lien, pledge or other encumbrance, except as
permitted by this Agreement, and all such shares have been duly
authorized and validly issued and are fully paid and
nonassessable. The Company and its Subsidiaries enjoy peaceful
and undisturbed possession under all leases under which they are
operating and all said leases are valid and subsisting and in
full force and effect.
2.1.5 Litigation. There is no action, proceeding
or investigation before any court or any governmental agency
pending or, to the Company's knowledge, threatened which may
result in any judgment, order, decree, or liability having a
Material Adverse Effect upon the business or condition, financial
or other, of the Company, or of the Company and its Subsidiaries
on a combined basis, and no judgment, decree or order has been
issued against the Company or any Subsidiary which has or will
have such an effect. Certain litigation is disclosed in the SEC
form 10-K filings referred to in Section 2.1.2.
2.1.6 Tax Returns. The Company and its
Subsidiaries have filed all federal, state, local and other tax
returns required by law to be filed by them, and all taxes shown
to be due have been paid. The federal income tax liabilities of
the Company for the year ended December 31, 1989, and for all
prior years, have been determined or accepted by the Internal
Revenue Service. No objection to any return or claim for
additional taxes is being asserted which, if sustained or
allowed, would have a Material Adverse Effect upon the
Consolidated net worth of the Company and its Subsidiaries as
shown in the December 31, 1993, balance sheet referred to in
Section 2.1.2. The Company believes all filed returns were
prepared in accordance with applicable statutes and generally
accepted principles applicable to taxation, and it believes that
reserves for taxes in said balance sheet are sufficient for the
payment of accrued and unpaid taxes of the Company and its
Subsidiaries, or that if not sufficient, such insufficiency is
not such as would have a Material Adverse Effect upon their
Consolidated net worth as shown on said December 31, 1993,
balance sheet.
2.1.7 Credit Ratings. The Company's senior
unsecured long-term debt ratings are BB+ and Baa3 from S&P and
Moody's, respectively. The Company is not aware of any adverse
pending action by either S&P or Moody's with respect to the
Company's current ratings that has not been disclosed to the
Banks in writing.
2.1.8 ERISA Compliance.
(a) Except as specifically disclosed in writing
to the Banks, 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 and to the best knowledge of
the Company, nothing has occurred which would cause the loss of
such qualification;
(b) There are no pending or, to the best
knowledge of Company, threatened claims, actions or lawsuits, or
action by any Governmental Authority, with respect to any Plan
which has resulted or could reasonably be expected to result in a
Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably
be expected to result in a Material Adverse Effect;
(c) No ERISA Event (excluding any issuance of a
notice of intent to terminate with respect to a "standard
termination" as described in Section 4041(b) of ERISA) has
occurred within the preceding five plan years which has generated
a liability that remains undischarged as of the date hereof;
(d) Except as specifically disclosed in writing
to the Banks, no Pension Plan has any Unfunded Pension Liability
and no Multiemployer Plan has any withdrawal liability under
Title IV of ERISA, determined as though the withdrawal of the
Company and all ERISA Affiliates occurred as of the date hereof;
and
(e) No unexempted "prohibited transaction" within
the meaning of Section 406 of ERISA exists which could expose the
Company or its ERISA Affiliates to a material liability.
2.1.9 No Defaults. No event has occurred and is
continuing which is, or with the lapse of time or notice or both
would be, an Event of Default.
2.1.10 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 writing to the Banks, such Environmental Laws and
Environmental Claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
2.2 Representations for Closing and Incremental Borrowing.
The Company represents and warrants that as of the date hereof
and as of the date of any Loan made pursuant to a notice of
borrowing delivered under Section 3.4.1:
2.2.1 Organization and Good Standing of Company and
Material Subsidiaries. The Company and its Material Subsidiaries
are duly organized and validly existing corporations in good
standing under the laws of their respective jurisdictions of
incorporation and are duly qualified and in good standing as
foreign corporations in all jurisdictions in which the nature of
their respective businesses or properties makes such
qualification necessary, except where such failure would not have
a Material Adverse Effect on the Company. The Company and its
Material Subsidiaries have the corporate power to own their
respective properties and assets, and to carry on their
respective businesses, all as, and in the places where, such
properties and assets are now owned or operated or such
businesses are now conducted, except where such failure would not
have a Material Adverse Effect on the Company.
2.2.2 Regulation U. The Company is not engaged,
principally or as one of its important activities, in the
business of purchasing or carrying Margin Stock or in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock and its assets do not include any material
amount of Margin Stock.
2.2.3 Authorization; Enforceability. The
execution, delivery, and performance of this Agreement and the
Notes and any instrument or agreement required hereunder are
within the corporate powers of the Company, have been duly
authorized by all necessary corporate action, and are not in
conflict with the terms of any charter, bylaw, or other
organization papers of the Company. The execution, delivery, and
performance of this Agreement and the Notes and any instrument or
agreement required hereunder are not in conflict with any
instrument or agreement to which the Company or any Subsidiary is
a party or by which the Company or any Subsidiary or any of the
Company's or any Subsidiary's properties are bound or affected.
This Agreement is a legal, valid, and binding agreement of the
Company, enforceable against the Company in accordance with it
terms, and any instrument or agreement required hereunder, when
executed and delivered, will be similarly legal, valid, binding,
and enforceable, subject only to the operation of the Bankruptcy
Code and other similar statutes for the benefit of debtors
generally and the application of general equitable principles.
2.2.4 Governmental Consent. Neither the nature of
the Company or of any Subsidiary, nor any of their respective
businesses or properties, nor any relationship between the
Company or any Subsidiary and any other Person, nor any
circumstance in connection with the execution or delivery of this
Agreement and the Notes is such as to require any consent,
approval or other action by or any notice to or filing with any
court or administrative or governmental body (other than routine
filings after the date hereof with the Securities and Exchange
Commission and/or State Blue Sky authorities) in connection with
the execution and delivery of this Agreement, the execution or
delivery of the Notes or fulfillment of or compliance with the
terms and provisions hereof or of the Notes.
2.2.5 Public Utility Holding Company Act and
Investment Company Act. The Company is exempt from the Public
Utility Holding Company Act of 1935. The Company is not, and
immediately after the application by the Company of the proceeds
of each borrowing hereunder will not be, an "investment company"
or a company controlled by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 3. TERMS OF CREDIT
3.1 Commitment to Lend. Each of the Banks severally agrees
on the terms and subject to the conditions herein set forth that
from the date hereof to the Termination Date, it will loan money
to the Company in an amount up to the amount of the Bank's
Commitment for the term and on the other terms and conditions
provided for herein. The aggregate of all Commitments shall not
exceed $650 million. Each borrowing made by the Company pursuant
to this Agreement which bears interest based upon Reference Rate
or LIBOR shall be in an aggregate amount of $10.0 million (except
the amount shall be at least $50.0 million in the case of one
week LIBOR Loans) or an integral multiple of $2.5 million in
excess thereof and shall be made from the several Banks ratably
in proportion to their respective Commitments.
Within the foregoing limits, and subject to the terms
and conditions hereof, the Company may borrow and repay and
reborrow money from each Bank and each Bank shall lend money to
and accept repayment from the Company in amounts up to but not in
excess of such Bank's Commitment at any time prior to the
Termination Date.
3.2 Reduction of Commitments.
3.2.1 Mandatory Reductions. On the Termination Date,
the Commitment of each Bank shall be reduced to zero.
3.2.2 Optional Reductions. The Company may at any
time, by giving ten Banking Days' written notice to the Banks,
reduce the aggregate Commitments in any integral multiple of
$10.0 million which the Company elects so long as the aggregate
Commitments remain at least equal to the aggregate principal
amount of the Loans outstanding hereunder. Any such notice shall
be irrevocable. Any reduction in Commitments shall be
apportioned among the Banks in proportion to their respective
Commitments as set forth on the signature page hereof.
3.3 Commitment Fees. During the period commencing on April
20, 1994, and ending on the Termination Date, the Company shall
pay to each Administrative Agent, for the account of the
respective Banks, on the last day of each calendar quarter a
commitment fee in an amount equal to the product of (x) the daily
average unused amount of each Bank's Commitment from the due date
of the last commitment fee payment (or from April 20, 1994, in
the case of the first such payment) through the next to the last
day of such quarter (both dates inclusive) and (y) the commitment
fee Per Annum determined by the Borrowing Rate and Commitment Fee
Table (adjusted during any such period for any changes in the
Company's credit rating, effective as of the date of the
announcement of such rating change).
3.4 Method of Borrowing.
3.4.1 Incremental Borrowings. If the Company borrows
money under this Agreement and such borrowing causes the
aggregate amount of the Loans outstanding under this Agreement to
increase, the Company shall give the Administrative Agents
written notice of the borrowing specifying the following
information:
3.4.1.1 The interest rate determination method
selected (LIBOR or Reference Rate).
3.4.1.2 The Interest Period selected. No
Interest Period may be specified if the Reference Rate is
selected as the interest rate determination method.
3.4.1.3 The date of the borrowing, which shall be
a Banking Day.
3.4.1.4 The aggregate amount of the borrowing.
3.4.1.5 An identification of the Company's bank
account in the United States to which the Company wishes to have
the incremental funds to be advanced pursuant to the borrowing
transferred, including the name and address of the bank and the
account number.
The foregoing notice of borrowing shall be given
by 9 a.m. San Francisco, California, time on the Banking Day next
preceding the date of the borrowing if the method of interest
rate determination selected is the Reference Rate and not less
than three Banking Days prior to the date of the borrowing if the
method of interest rate determination selected is LIBOR. Any
notice of borrowing shall be given to the Administrative Agents.
3.4.2 Other Borrowings. If the Company elects at the
end of any Interest Period to reborrow an amount equal to or less
than the principal amount then outstanding under the Loans
subject to the Interest Period then expiring, it shall give the
Administrative Agents written notice of such reborrowing
specifying the following information:
3.4.2.1 The interest rate determination method
selected (LIBOR or Reference Rate).
3.4.2.2 The Interest Period selected. No
Interest Period may be specified if the Reference Rate is
selected as the interest rate determination method.
3.4.2.3 The aggregate dollar amount to be
reborrowed and the aggregate dollar amount of the reduction in
the Loans subject to the Interest Period then expiring, if any.
3.4.2.4 The date of the reborrowing, which shall
be the Banking Day on which the Loan to be repaid matures.
The foregoing notice of reborrowing shall be given
by 9 a.m. San Francisco, California, time not less than one
Banking Day prior to expiration of the Interest Period of the
Loan then maturing if the method of interest rate determination
being selected is the Reference Rate and not less than three
Banking Days prior to expiration of the Interest Period if the
method of interest rate determination being selected is LIBOR.
If the Company gives notice of an incremental borrowing pursuant
to Section 3.4.1 which coincides with the expiration of the
Interest Period for any then existing Loan, it may include the
amount of the existing Loan in the notice of incremental
borrowing and, if it does so, need not give notice pursuant to
this Section, but shall separately state in the notice of
borrowing the amount of the incremental borrowing and the amount
of the reborrowing.
Any notice of reborrowing shall be given to the
Administrative Agents.
3.4.3 Repayments; Deemed Election. If the Company
elects to fully repay any Loan at the end of the Interest Period,
it shall give notice of such intention to both of the
Administrative Agents. Such notice need only specify the
Company's intent to repay the Loan in full.
If the Company fails to give notice of reborrowing
or repayment pursuant to Section 3.4.2 or this Section 3.4.3 in
respect of any Loan prior to one Banking Day before the
expiration of the Interest Period applicable to any Reference
Rate Loan or three Banking Days before the expiration of the
Interest Period applicable to any LIBOR Loan, it shall be deemed
to have elected to reborrow the full amount of such Loan, and it
shall be deemed to have selected the Reference Rate as the method
of interest rate determination for such Loan.
3.4.4 Notice Irrevocable; Effect of Notice. Any
notice of borrowing, reborrowing or prepayment, given by the
Company shall be irrevocable and upon receipt of such notice by
the Administrative Agents by 9 a.m. San Francisco, California,
time on the required Banking Day and satisfaction of all
applicable conditions precedent set forth in Section 4 hereof,
each Bank shall be unconditionally obligated to lend the amount
requested on the date specified in the notice so long as
immediately after the making of such Loan the aggregate amount of
all Loans outstanding from such Bank is equal to or less than the
Bank's Commitment. Failure of any Bank to honor its Commitment
shall not excuse any other Bank from honoring its Commitment in
full.
If the Company fails to borrow any incremental
amount called for in a notice of borrowing given by it, the
Company shall pay a Broken Interest Period Amount calculated in
respect of such incremental borrowing.
3.4.5 Notice to Banks. Promptly upon receipt of any
notice given by the Company pursuant to Section 3.4.1, 3.4.2, or
3.4.3, each of the Administrative Agents shall calculate each
Bank's respective share of the incremental borrowing,
reborrowing, and/or repayment requested in such notice and
transmit such information, together with the applicable Borrowing
Rate and all other information included with such notice, to each
of the Banks. Such calculation and transmittal shall be made for
the Domestic Banks by the Domestic Administrative Agent and for
the Foreign Banks by the Foreign Administrative Agent.
3.5 Repayment and Prepayment.
3.5.1 Repayment. Each Loan shall mature and be due
and payable in full together with all interest accruing thereon
on the last day of the Interest Period applicable to such Loan.
If the Company shall have given notice of borrowing or
reborrowing in respect of any Loans pursuant to Section 3.4.1 or
3.4.2 or be deemed pursuant to Section 3.4.3 to have elected to
reborrow in respect of any Loans, each Bank shall advance the
funds it is required to loan on the last day of the Interest
Period then expiring in satisfaction (or partial satisfaction if
less than a full reborrowing is elected by the Company) of the
principal then due. The Bank shall apply the funds so advanced
to make payment of any Loans then expiring. All interest owed by
the Company pursuant to any Loans and any principal of such Loans
which is not required to be satisfied by a reborrowing in
accordance with the preceding two sentences, shall be paid by the
Company on the maturity date of the Loan in accordance with the
provisions of Section 3.7. If any Bank fails to advance sums
which it is legally obligated to advance, interest shall accrue
on any Loan from such Bank which was to have been refinanced by
such amount at the Borrowing Rate specified by the Company in its
notice of borrowing which was not honored. Such interest shall
begin on the date which the advance should have been made and be
payable at the end of the Interest Period specified in the
Company's notice of borrowing.
3.5.2 Prepayment. The Company may prepay sums owed
hereunder on the following terms and conditions. Prepayment may
occur at any time but shall be preceded by at least three Banking
Days' written notice from the Company to the Administrative
Agents specifying:
3.5.2.1 The aggregate amount of the prepayment.
3.5.2.2 The date of the prepayment, which shall
be a Banking Day.
3.5.2.3 The Loans to which the prepayment is to
be applied.
Any prepayment made pursuant to this Section shall
be in an integral multiple of $10.0 million or in full. On the
date of any prepayment the Company shall pay, in addition to the
principal to be prepaid, all accrued and unpaid interest owed on
the Loans being prepaid. If the Loans being prepaid, by
acceleration or otherwise, earn interest on the basis of LIBOR,
the Company shall also pay the Broken Interest Period Amount.
The Broken Interest Period Amount shall be paid to the
Administrative Agents as soon after the date of prepayment as the
necessary calculations can be made by the Foreign Administrative
Agent. Any prepayment and any Broken Interest Period Amount
shall be distributed on the date received by the Administrative
Agents pro rata among all Banks in proportion to their respective
shares of the Loan or Loans prepaid.
3.6 Calculation and Payment of Interest. Interest
shall accrue on each Loan at a rate determined pursuant to the
method of interest rate determination specified by the Company in
its notice of borrowing given in respect of such Loan pursuant to
Section 3.4. Such interest shall be payable upon maturity,
prepayment, or acceleration of the Loan, except in the case of
six month LIBOR loans, where three months accrued interest is
payable at the end of three months and upon maturity. The amount
of interest payable by the Company in respect of a Loan shall be
equal to the sum of the daily borrowing costs for each day of the
Interest Period applicable to such Loan (or portion thereof
during which the Loan is outstanding in the event a prepayment
occurs). The daily borrowing costs for any Loan shall be equal
to the product of (x) the principal amount of the Loan and (y)
the Borrowing Rate applicable to such Loan converted to a per
diem basis. If the Borrowing Rate is determined on the basis of
the Reference Rate calculated under clause (b) of the definition
of Reference Rate, the conversion from an annual rate to a per
diem rate shall be made on the basis of a year of 365 or 366
days, as the case may be. If the Borrowing Rate is determined on
the basis of the Federal Funds Rate, or LIBOR, the conversion
from an annual rate to a per diem rate shall be made on the basis
of a year of 360 days. The calculation of interest due each Bank
shall be made by the Administrative Agents in consultation with
the Company.
3.7 Payments. All payments of principal, interest,
commitment fees, expenses, or other charges due from the Company
to any Bank pursuant to this Agreement and all advances of funds
made by any Bank to the Company pursuant to this Agreement shall
be made in lawful money of the United States of America in
immediately available funds irrespective of any set off,
counterclaim, or defense in payment (except where a Bank has
failed to advance funds to refinance Loans as provided for in the
last sentence of the second paragraph of the form of promissory
note attached as Schedule 1).
All fund transfers required by this Agreement except
for payments required to be made by the Company pursuant to
Sections 3.10, 3.12, and 9.2 shall be made through the
Administrative Agents in accordance with the following:
3.7.1 All such fund transfers shall be made through
the Domestic Administrative Agent in respect of Domestic Banks
and through the Foreign Administrative Agent in respect of
Foreign Banks.
3.7.2 Any such fund transfer shall be made to the
appropriate Administrative Agent on the date due by not later
than 10 a.m. San Francisco, California, time, in which case the
Administrative Agent receiving each such fund transfer shall in
turn transfer such funds to the party entitled thereto on the
same day as it receives such funds. If any fund transfer is
received by the Administrative Agent after 10 a.m. San Francisco,
California, time, it shall use commercially reasonable efforts to
retransfer the funds to the party entitled thereto on the same
day, but in no event later than the next Banking Day. The amount
of interest payable by the Company hereunder shall be based upon
the actual date on which funds are received by the party entitled
thereto and not on the date they are received by the
Administrative Agent.
3.7.3 The Administrative Agents may, but shall not be
required to, make funds available to any Bank on a short-term
basis if the Company has failed to make a timely transfer of
funds, and they may, but shall not be obligated to, make funds
available to the Company if any Bank has failed to make a timely
transfer of funds. In the event of any such covering advance,
the party receiving such funds shall repay them to the
Administrative Agent making the advance on demand, together with
interest which shall accrue thereon in respect of advances to a
Bank at the overnight Federal Funds Rate as determined by the
Administrative Agent making the advance and in respect of
advances to the Company at the Borrowing Rate applicable to the
Loan for which such funds were to have been advanced. The fact
that the party failing to make a timely transfer has not yet
completed the required fund transfer shall not provide a defense
to the foregoing repayment obligation.
Except as provided in the definition of "Interest
Period," if the principal or interest owed in respect of any Loan
or any commitment fee or other fee or sum owed hereunder by the
Company falls due on a day which is not a Banking Day, then such
principal, interest, or fees shall be due and payable on the next
day thereafter which is a Banking Day, and interest shall be
payable in respect of such extension of principal until paid at
the Borrowing Rate last in effect in respect of such principal.
Any amount which shall not be paid when due (at maturity, by
acceleration or otherwise) shall thereafter bear interest payable
on demand at a rate Per Annum equal to 2% above the Reference
Rate plus the applicable incremental rate Per Annum.
3.8 Pro Rata Treatment; Sharing.
3.8.1 Pro Rata Treatment. Each borrowing from and
change in the Commitments of the Banks hereunder shall be made
pro rata according to their respective Commitments. Each payment
and prepayment of principal owed in respect of any Loans of like
maturity shall be allocated among the Banks by their respective
Administrative Agent pro rata in proportion to the unpaid portion
of such Loans held by each of them. Each payment of commitment
fees shall be allocated among the Banks by their respective
Administrative Agent pro rata in proportion to the unused
Commitments of each of them. Each payment of interest shall be
allocated among the Banks by their Administrative Agent pro rata
in proportion to the interest then due and payable to each of
them.
3.8.2 Sharing. The Banks agree among themselves that,
if a Bank shall obtain payment of any Loan or interest or fee
payable thereon held by it through the exercise of a right of
set-off, banker's lien or counterclaim in excess of its ratable
amount, it shall promptly purchase from the other Banks
participations in the Loans held by the other Banks in such
amounts and make such other adjustments from time to time as
shall be equitable, to the end that all the Banks shall share the
benefit of such payment pro rata as specified in Section 3.8.1.
If all or any portion of such excess payment is thereafter
recovered from such Bank, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but
without interest. The Company agrees that any Bank so purchasing
a participation in the Loans held by the other Banks may exercise
all rights of set-off, banker's lien and counterclaim with
respect to such participation as fully as if such Bank were a
direct holder of Loans in the amount of such participation.
3.9 Loan Accounts and Notes. Each Bank shall maintain in
respect of Loans made pursuant to this Agreement a loan account
in which it shall record each Loan made by it to the Company
pursuant to this Agreement and each payment or prepayment of
principal and interest received by it in respect of such Loans.
Any Bank may elect by written notice given to the Company at any
time to require the Company to deliver to the Bank the Company's
promissory note evidencing the Loans which shall be in the form
attached as Schedule 1. Each Bank shall make prompt and accurate
entries in such loan account or on the grid attached to its Note
of the making of each Loan and each repayment or prepayment of
principal thereof and payment of interest thereon, provided,
however, that failure to do so shall not relieve the Company from
the obligation to repay principal and to pay interest on the
Loans. Loan accounts maintained by the Banks are prima facie
evidence of the amount of the Loans outstanding.
3.10 Illegality and Change in Law.
3.10.1 Illegality. If it shall become illegal for any
Bank to make or maintain any Loans made hereunder, such Bank
shall promptly notify the Company and the Administrative Agents
in writing of such fact, and the Bank shall thereafter be excused
from its obligation to make or maintain Loans hereunder for so
long as it shall remain unlawful to do so. Upon receipt of such
notice, the Company shall prepay within three Banking Days all
Loans from such Bank then outstanding determined to be illegal,
together with all accrued and unpaid interest owed in respect of
such Loan and, as soon thereafter as the necessary calculations
can be made, the Company shall pay each such Bank any applicable
Broken Interest Period Amount arising from such prepayment. The
Company may at its option reborrow all or any portion of such
Loans from the affected Bank or Banks on the basis of an interest
rate formula provided for herein which is not illegal, if such
shall exist.
3.10.2 Change in Law. If the cost to any Bank of
making or maintaining any Loan on the basis of LIBOR is increased
because of either of the reasons set forth in subsections
3.10.2.1 and 3.10.2.2 below, such Bank may by written notice
given to the Company and the Administrative Agents require the
Company to pay with respect to all or any portion of any Interest
Period following the delivery of such notice to the Company a sum
equal to its additional cost incurred in maintaining or making
such Loan, but in no event shall the Company be obligated to
reimburse any costs incurred for periods earlier than six months
prior to the delivery of the written notice. Said sum shall be
paid upon maturity or prepayment of the Loan or as soon
thereafter as the amount can be determined. Any Bank asserting a
right to recover such excess costs shall certify in its notice
required by this Section 3.10.2 the cause and amount of such
additional cost. If the interest payable by the Company to any
Bank is increased pursuant to this subsection, the Company may at
its option at any time during which the interest rate payable
hereunder is so increased prepay on three Banking Days' notice
all but not part of the Loan or Loans subject to such increase in
the interest rate to the Administrative Agents for the account of
the Bank or Banks claiming increased costs under this subsection.
If the Company prepays any Loan pursuant to this subsection, it
shall also pay at the time of such prepayment all accrued and
unpaid interest owed to the Bank or Banks whose Loan or Loans are
prepaid on account of the Loan or Loans so prepaid and as soon
thereafter as the necessary calculations may be made, it shall
pay the Broken Interest Period Amount to such Bank or Banks. If
the Company elects to prepay the Loans of any Bank claiming
increased costs under this subsection, it may, but shall not be
obligated to, either reborrow such sums from the claiming Bank or
Banks on the basis of a method of interest rate determination
which is not subject to such claim for increased costs or
terminate the Commitment of the claiming Bank or Banks. Any
election by the Company to prepay one or more claiming Banks or
to reborrow sums prepaid to claiming Banks from such Banks on the
basis of a different method of determining the interest rate or
to terminate the Commitment of one or more claiming Banks, shall
have no effect on the obligation of the remaining Bank or Banks
to maintain existing Loans and to make additional Loans up to the
full amount of such Banks' Commitment on the basis of any of the
methods of interest rate determination available under this
Agreement. In the event the Commitment of any Bank is
terminated, any subsequent proration among the remaining Banks
shall be done on the basis of the remaining Commitments. Any
Bank may claim additional costs pursuant to this subsection if
either of the following conditions precedent are satisfied:
3.10.2.1 The compliance by such Bank with any
Requirement of Law effective after the date hereof or any
guideline, request, or directive from any central bank or other
Governmental Authority or any other law, rule, or regulation
(whether or not having the force of law) effective after the date
hereof which increases the Bank's cost of maintaining Loans on
the basis of LIBOR.
3.10.2.2 Any tax, levy, impost, duty, fee,
deduction or withholding is levied or assessed against or
required of any Bank on account of or in connection with its
Commitment or Loans made hereunder, the payment or repayment
thereof or payment of interest thereon which is not levied or
assessed on such Commitment or Loans on the date hereof, other
than changes in the rate of tax on the net income of the Bank.
3.10.3 Increased Risk-Based Capital Cost. If the cost
to any Bank of maintaining its Commitment is increased because of
a Requirement of Law which becomes effective after the date
hereof by the Board of Governors of the Federal Reserve System or
any guideline, request, or directive from any central bank or
other Governmental Authority or any other law, rule, or
regulation (whether or not having the force of law) effective
after the date hereof, or other regulatory entity of any country,
with respect to risk-based capital requirements or other similar
regulation of lending commitments, such Bank may, by written
notice given to the Company and the Administrative Agents,
require the Company to pay as an increase to the commitment fee
specified in Section 3.3, commencing on the last day of the first
full calendar quarter following receipt of such notice, an amount
equal to such Bank's additional cost. Any Bank asserting a right
to recover such increased costs shall certify in its notice
required by this Section 3.10.3 in reasonable detail the cause
and amount of such additional cost. At any time after receipt of
such notice the Company may, at its option, elect to terminate
the Commitment of any such claiming Bank or Banks as a group or
individually. If the Company elects, pursuant to the preceding
sentence, to terminate the Commitment of any Bank from which
Loans are then outstanding, such reduction in Commitment shall be
limited in amount to the unused portion thereof or, if the
Company shall so elect, the full Commitment shall be terminated
and on the date of such termination, all principal, accrued and
unpaid interest, and accrued and unpaid Commitment fees owed to
such Bank shall be paid, and as soon thereafter as the necessary
calculations can be made, a Broken Interest Period Amount for the
Loan or Loans so prepaid shall be paid to such Bank. In the
event the Commitment of any Bank is terminated, any subsequent
proration among the remaining Banks shall be done on the basis of
the remaining Commitments.
3.11 U.S. Tax Treaty Certificate.
3.11.1 Each Bank, other than a Bank organized and
existing under the laws of the United States of America or any
political subdivision in or of the United States, shall deliver
to the Company and such Bank's Administrative Agent on the date
hereof a certificate dated as of the date hereof to the effect
that, at the date of the certificate, the Bank is entitled under
the provisions of either:
3.11.1.1 An applicable double tax treaty
concluded by the United States of America (in which case each
such certificate shall be accompanied by two signed copies of
Form 1001 of the United States Internal Revenue Service); or
3.11.1.2 Section 1441(c) or 1442(a) of the Code
(in which case each such certificate shall be accompanied by two
signed copies of Form 4224 of the Internal Revenue Service); to
receive payments of interest under this Agreement without
deduction or withholding or with reduced withholding of United
States federal income tax. Each Bank covenants to the Company
and the Administrative Agents that the certificate so delivered
by it will be true and accurate and agrees to deliver to the
Company and such Bank's Administrative Agent additional true and
accurate certificates promptly after the occurrence of events
requiring a change in the most recent certificate previously
delivered. Unless an event has occurred which renders delivery
of the relevant form inapplicable, each Bank will deliver to the
Company two further signed copies of Form 1001 as and when
required by the Internal Revenue Service or (as the case may be)
an annual Form 4224, and, in addition (if necessary), two signed
copies of Form W-9.
3.11.2 If any Bank is entitled to a reduction in the
applicable withholding tax, the Company or the Administrative
Agents may withhold from any interest payment to such Bank an
amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation
required by this Section are not delivered to the Company and the
Administrative Agents, then the Company or the Administrative
Agents may withhold from any interest payment to such Bank not
providing such forms or other documentation an amount equivalent
to the applicable withholding tax.
3.11.3 If the IRS or any other Governmental Authority
of the United States or other jurisdiction asserts a claim that
the Company or the Administrative Agents did not properly
withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered, was not properly
executed, or because such Bank failed to notify the Company and
the Administrative Agents 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 Company and the Administrative Agents fully for all amounts
paid, directly or indirectly, by the Company and the
Administrative Agents as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Company and the Administrative
Agents under this Section, together with all costs and expenses
(including legal costs). The obligation of the Banks under this
subsection shall survive the payment of all obligations and the
resignation or replacement of the Administrative Agents.
3.12 Compensation for Special Reserve Requirements and
Taxes. If any Bank shall determine that any rule, regulation or
policy of the Board of Governors of the Federal Reserve System or
any tax, levy, impost, duty, fee, deduction or withholding as in
effect as of the date hereof requires it to maintain any
ordinary, emergency, supplemental, or other reserve or incur any
other cost in respect of obligations incurred by it to fund any
Loan made by it hereunder on the basis of LIBOR which is a
reserve or other cost not generally incurred by the Banks in
respect of the funding of Loans hereunder, it may notify the
Company and the Administrative Agents of the existence and amount
of such additional reserve or costs and the Company shall for so
long thereafter as the affected Loan remains outstanding
reimburse such Bank for its additional costs described in such
notice. The foregoing additional compensation shall include
compensation for reserve requirements imposed in respect of LIBOR
Loans pursuant to Regulation D of the Board of Governors of the
Federal Reserve System. All such payments shall be made directly
from the Company to the affected Bank and not through either
Administrative Agent. The Company shall have the right upon
receipt of any such notice, or at anytime thereafter so long as
such additional costs remain in effect, to (i) require such Bank
to relend on the basis of another interest rate formula which
does not cause the Bank to incur such additional reserves or
costs, or (ii) prepay the affected Loan from such Bank (with
payment of any applicable Broken Interest Period Amount), and
suspend the Commitment and the commitment fee of such Bank as to
further Loans for so long as such Bank has not given the Company
and the Administrative Agents notice that the conditions
resulting in such additional reserves or costs no longer remain
in effect. Any Bank claiming additional compensation pursuant to
this Section 3.12 shall promptly notify the Company of the end of
any period of entitlement to such additional compensation.
3.13 Unavailability of Rates. Notwithstanding anything
herein to the contrary, if prior to the beginning of an Interest
Period as to interest on Loans calculated according to a
Borrowing Rate based upon LIBOR, any two of the Reference Banks
state their inability for any reason to identify particular rates
or obtain sufficient funds in the respective market or to make or
maintain the funds available where, when and for as long as
specified by the Company as to those Loans, then the Company
shall at its option upon notice from the Foreign Administrative
Agent either (a) withdraw the borrowing request (or prepay the
affected Loans) or (b) draw (or continue) the Loans with interest
based upon Reference Rate, without impairing the Company's option
to elect a further change in the Borrowing Rate for such Loans in
the manner provided by Section 3.4.2.
3.14 Interest Limitation. The obligation of the Company to
pay interest on the Loans and the Notes shall be subject to the
limitation that payment of interest or a portion thereof shall
not be required to the extent that receipt of such payment or
portion by any Bank would be in excess of the amounts permitted
by any law applicable to such Bank existing on the date hereof
limiting the maximum rate of interest which may be charged or
collected by such Bank. Any such limitation on interest as to a
Bank that reduces the amount of interest collectible by that Bank
below the applicable Borrowing Rate by two percent of such
Borrowing Rate or more shall require a change to another
Borrowing Rate with respect to that Bank which would not result
in such a reduction, pursuant to Section 3.4.2 and, if none is
available, shall excuse the Bank from making the Loan in like
manner to Section 3.10.
3.15 Assignments; Delegation of Lending Commitments;
Participations. Without the prior written consent of the Company
(which may be withheld by the Company in its sole discretion), no
Bank shall sell, convey, transfer, or assign any Loan outstanding
hereunder, or which may come to be outstanding hereunder, except
to a wholly owned Affiliate of such Bank or to the extent that it
may be required to do so or to preserve the right to do so under
applicable law or under this Agreement. No Bank shall delegate
its Commitment to any Person. Except as provided in Section
3.8.2, no Bank shall create or grant any participation in any
Loan. In the event of any transfer of a Loan or interest therein
or delegation of its Commitment in violation of the provisions of
the preceding three sentences, such transferee shall have none of
the rights accorded a Bank hereunder or under the Notes, the
Company shall not be required to deal with or accept a Loan from
any such improper delegee, and it may continue to look to the
improperly delegating Bank for performance of the Commitment.
Notwithstanding any other provision of 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 Federal Reserve Board or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal
Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
3.16 Special Mandatory Prepayment. If either of the events
described in Sections 3.16.1 and 3.16.2 below occur, the Majority
Banks may require a special mandatory prepayment of all Loans
outstanding hereunder and terminate the Commitment of the Banks
in accordance with the following procedures: the Majority Banks
may make a preliminary determination that such event has impaired
or most likely will impair the Company's ability to repay Loans
then outstanding or which may be requested thereafter by the
Company or otherwise perform in accordance with the terms hereof.
Either or both of the Administrative Agents shall notify the
Company of such preliminary determination. At any time after the
10th day following such notice, the Majority Banks may make such
preliminary determination final, and upon receipt by the Company
of notice from either or both of the Administrative Agents of
such final determination, all principal and accrued and unpaid
interest and all accrued and unpaid commitment fees owed
hereunder or under the Notes shall be immediately due and payable
and the Commitment of all Banks hereunder shall be terminated.
The events which may permit such special mandatory prepayment
are:
3.16.1 Change in the Board. A material change in the
Board of Directors which will be conclusively deemed to have
occurred if, and only if, during any period of two consecutive
years individuals who at the beginning of such period constitute
the Board of Directors (including for this purpose any new
director whose election or nomination for election by the
Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were
directors at the beginning of the period), cease for any reason
to constitute a majority of the Board of Directors.
3.16.2 Change in Shareholders. A material change in
the Company's stockholders which will be conclusively deemed to
have occurred if, and only if, any Person or related group of
Persons (other than a trustee or other entity which holds the
Company's stock on behalf of an employee benefit plan whose
participants are all current or former employees of the Company)
shall acquire ownership or control by proxy or otherwise of 50%
or more of the Company's Voting Securities. The term "Voting
Securities" shall mean all Capital Stock of the Company which is
entitled to vote for the election of directors.
3.17 Lending Offices. Reference Rate Loans made by each
Bank shall be made from and maintained at such Bank's Domestic
Lending Office. LIBOR Loans made by each Bank shall be made from
and maintained at such Bank's Eurodollar Lending Office. Each
Bank may, from time to time by written notice given to the
Company and the Administrative Agents, change its designation of
lending office for Loans based on any Borrowing Rate.
Designation by any Bank of an Affiliate as the Domestic Lending
Office or the Eurodollar Lending Office shall not affect the
obligations of such Bank or the Company hereunder.
3.18 Survival. All liabilities of the Company under this
Agreement arising prior to the Termination Date shall survive
termination of this Agreement and/or repayment of Loans.
SECTION 4. CONDITIONS PRECEDENT
4.1 Initial Loans. The initial Loan under this Agreement
shall not be made earlier than April 20, 1994. The obligation of
each Bank to make the initial Loan under this Agreement shall not
arise earlier than April 20, 1994, and shall be subject to the
following conditions precedent (all documents required to be
delivered hereunder shall be delivered with the number of
originals and copies requested by the Administrative Agents).
4.1.1 Notes. The Company shall have furnished the
Administrative Agents with a Note for each Bank requesting such.
4.1.2 Signatures. The Company shall have certified to
the Administrative Agents the name and signature of each officer
of the Company authorized to sign this Agreement and the Notes
and to borrow and effect other transactions hereunder. The
Administrative Agents and the Banks may conclusively rely on such
certification until they receive notice in writing to the
contrary.
4.1.3 Opinion of Company's General Counsel. The
Administrative Agents shall have received from the General
Counsel of the Company an opinion in the form attached as
Schedule 2.
4.1.4 Proof of Corporate Action. The Administrative
Agents shall have received certified copies of all corporate
action taken by the Company to authorize the execution, delivery
and performance of this Agreement and the Notes, and the
borrowings hereunder, and such other papers as the Administrative
Agents shall reasonably require.
4.1.5 Officer's Certificate. The Administrative
Agents shall have received a certificate of a Principal Financial
Officer to the effect that since December 31, 1993, there has
been no material adverse change in the business, condition or
operations (financial or otherwise) of the Company or of the
Company and its Subsidiaries on a combined basis, except as
disclosed pursuant to Section 2.1.3 and that no event has
occurred and is continuing which, under the terms hereof, is an
Event of Default or would, with the lapse of time or notice or
both, become an Event of Default.
4.1.6 Opinion of Special Counsel to the Administrative
Agents. Special Counsel to the Administrative Agents shall have
rendered its opinion to the Administrative Agents and the Banks
concerning this Agreement, the Notes, and the initial Loan which
shall be satisfactory in form and substance to both of the
Administrative Agents.
4.1.7 Notice of Borrowing. Satisfaction of the
conditions precedent set forth in Section 4.2.1 and 4.2.2.
4.1.8 Prior Revolving Loan Agreement. All amounts due
under the Boise Cascade Corporation 1990 Revolving Loan Agreement
dated as of January 1, 1990, as amended, have been paid and the
commitment of the banks thereunder terminated.
4.1.9 Boise Cascade Canada Ltd. Revolving Credit
Agreement. All amounts due under the Boise Cascade Canada Ltd.
1990 Revolving Credit Agreement dated as of May 1, 1990, as
amended, have been paid and the commitment of the banks
thereunder terminated.
4.1.10 Credit Agreement. The Administrative Agents
shall have received this Agreement executed by the Company, the
Administrative Agents and the Banks.
4.2 Incremental Borrowings. The obligation of each
Bank to make each Loan required by a notice of borrowing given
pursuant to Section 3.4.1 shall be subject to the following
conditions precedent:
4.2.1 Absence of Default. No Event of Default, and no
event which with notice or lapse of time or both would become an
Event of Default, shall have occurred and be continuing on the
date of such Loan and a Principal Financial Officer shall have so
certified to the Administrative Agents and the representations
and warranties of the Company set forth in Section 2.2 shall be
deemed to be remade as of the date of such Loan and shall be true
and correct in all material respects and a Principal Financial
Officer shall have so certified to the Administrative Agents.
4.2.2 Notice. Notice of the borrowing shall have been
given in accordance with Section 3.4.1.
4.3 Other Borrowings. The obligation of each Bank to make
each Loan required by a notice of Borrowing given or deemed given
pursuant to Section 3.4.2 shall be subject to the conditions
precedent that the Company shall have complied with its
obligations under Section 5.1.7 and the Majority Banks have not
terminated the Banks' Commitments and/or accelerated payment on
the unpaid balance of all Loans pursuant either to Section 3.16
or Section 7.2. Each such reborrowing shall be deemed a
certification by the Company that this condition is satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and so long as the Commitment of any
Bank shall be outstanding and until the payment in full of all
sums owed hereunder and under the Notes and the performance of
all other obligations of the Company under this Agreement, the
Company agrees that, unless the Majority Banks shall otherwise
consent in writing:
5.1 Information and Reports to be Furnished by the Company.
The Company will furnish to each Bank (in duplicate if requested)
the following information and reports:
5.1.1 Quarterly Reports. As soon as available and, in
any event, within 45 days after the end of each of the first
three Fiscal Quarters and within 90 days after the end of the
fourth Fiscal Quarter in each of the Company's Fiscal Years, the
Consolidated balance sheets of the Company and its Restricted
Subsidiaries as of the close of such quarter, and the related
Consolidated statements of income and cash flows for the expired
portion of the Fiscal Year then ended, together with comparative
Consolidated figures for the same periods of the preceding year.
Such financial statements have been prepared from the books and
records of the Company and its Subsidiaries kept in accordance
with Section 5.2. So long as the book value of the Company's
aggregate investment in and advances to its Unrestricted
Subsidiaries is less than 5% of Consolidated Net Tangible Assets,
the financial statements and certification required by this
Section 5.1.1 may be presented without exclusion of such
Unrestricted Subsidiaries.
5.1.2 Annual Statements. As soon as available and, in
any event, within 90 days after the end of each Fiscal Year, the
Consolidated balance sheets of the Company and its Subsidiaries
as at the end of such year, and the related Consolidated
statements of income, retained earnings, shareholders' equity and
cash flows for such year, together with comparative figures for
the immediately preceding Fiscal Year, all in reasonable detail
and accompanied by (i) reports or certificates of independent
public accountants of recognized national standing stating, with
respect to such Consolidated financial statements, that the
financial statements were prepared in accordance with Generally
Accepted Accounting Principles without any qualification due to
limited investigation, such accountants to be satisfactory to the
Majority Banks, and (ii) the statement of such public accountants
that they have caused the provisions of this Agreement to be
reviewed and have no knowledge of any default by the Company in
the performance or observance of any of the provisions of
Sections 6.1, 6.2, 6.3, and 6.4 of this Agreement or the Notes
or, if they have such knowledge, specifying such default and the
nature thereof.
5.1.3 Compliance Certificate and Computations. At the
time of delivery of each quarterly and annual statement furnished
pursuant to Section 5.1, a certificate signed by a Principal
Financial Officer, stating that he has caused the provisions of
this Agreement to be reviewed and has no knowledge of the
occurrence of any default by the Company in the performance or
observance of any of the provisions of this Agreement or the
Notes or if he has such knowledge, specifying such default and
the nature and status thereof, and setting forth computations in
reasonable detail showing, as of the end of the period covered by
such statement, the amounts of Consolidated Senior Funded Debt
and Consolidated Tangible Net Worth. Such certificate shall
also show compliance with Sections 6.1 and 6.3 as appropriate.
5.1.4 Credit Rating. Prompt written notice of any
change in the Company's senior unsecured long-term debt rating by
either S&P or Moody's.
5.1.5 Reports to Stockholders. Promptly upon the
sending, making available or filing of the same, all such debt
registration statements, proxy statements, financial statements
and reports as the Company shall send or make available to its
stockholders or to any holder of its public Senior Funded Debt
for borrowed money or filed with the Securities and Exchange
Commission, excluding filings made with the SEC solely in respect
of securities issued pursuant to employee benefit plans of the
Company and its Subsidiaries.
5.1.6 Miscellaneous Information; Inspection. From
time to time upon request, such information regarding the
business and affairs and condition (financial and other) of the
Company, its Restricted Subsidiaries, and its Material
Subsidiaries and their respective properties in such detail as
may reasonably be requested by each Bank; and each Bank shall
also have the right at its expense to visit and inspect any of
such properties, to examine books of account, records and other
papers of the Company, its Restricted Subsidiaries, and its
Material Subsidiaries and to take notes and make transcripts
therefrom, and to discuss their affairs, finances and accounts
with, and be advised as to the same by, their officers, all at
such reasonable times and intervals as may be requested.
5.1.7 Notice of Event of Default. Promptly upon a
Principal Financial Officer obtaining knowledge of an Event of
Default, the Company shall give written notice to the
Administrative Agents of the Event of Default and what action the
Company proposes to take with respect thereto. The Company shall
also give the Administrative Agents a copy of any such notice any
time a notice of reborrowing is given pursuant to Section 3.4.2
or deemed to be given under Section 3.4.3, if the Event of
Default is continuing at the time such reborrowing notice is
given or is deemed to be given.
5.1.8 ERISA. The Company shall promptly notify the
Banks of:
(a) Any ERISA Event affecting the Company or any
ERISA Affiliate, together with a copy of any notice with respect
to such event that may be required to be filed with a
Governmental Authority and any notice delivered by a Governmental
Authority to the Company or any ERISA Affiliate with respect to
such event;
(b) Any material increase in the Unfunded Pension
Liability of any Pension Plan or any material increase in the
withdrawal liability of any Multiemployer Plan, whether arising
under an existing Pension Plan or Multiemployer Plan or such a
plan that is subsequently adopted or maintained; and
(c) The occurrence of any "prohibited
transaction" within the meaning of Section 406 of ERISA, that is
not covered by an exemption, and which could expose the Company
or its ERISA Affiliates to a material liability.
5.1.9 Litigation. Notice of any litigation or
administrative proceeding that has resulted or may result in a
Material Adverse Effect, including (i) breach or nonperformance
of, or any default under, a contractual obligation of the Company
or any Subsidiary; (ii) any litigation or proceeding 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. Such
notice shall be given within ten days after a Principal Financial
Officer of the Company has determined that such litigation or
proceeding has resulted or may result in a Material Adverse
Effect on the Company.
5.2 Accounts. The Company and its Subsidiaries will each
keep true records and books of account in which full, true and
correct entries will be made of all dealings or transactions in
relation to its business and affairs in accordance with Generally
Accepted Accounting Principles.
5.3 Prompt Payment of Indebtedness. The Company and its
Restricted Subsidiaries and Unrestricted Subsidiaries (but only
to the extent that nonpayment of the following items shall create
a payment obligation to the Company or a Restricted Subsidiary)
will each promptly pay and discharge, when due and payable, all
lawful taxes, assessments and governmental charges or levies
imposed upon it or its property, and all its other Indebtedness,
provided, however, that any such tax, assessment, charge, levy or
other Indebtedness need not be paid: (a) if the validity thereof
shall currently be contested in good faith by appropriate action
or proceedings, the Company or the Restricted Subsidiary
concerned shall have set aside on its books adequate reserves
with respect thereto and no proceedings shall have been commenced
to foreclose any lien securing any such tax, assessment, charge
or levy; or (b) on any note secured by a mortgage or deed of
trust on property held by the Company or its Restricted
Subsidiaries or in connection with any tax, assessment,
government charge or levy, if the sole recourse of the mortgage
or deed of trust holder or taxing authority is to foreclose on
the property subject to such mortgage or tax and so long as any
such sum is due and unpaid the assets so encumbered are excluded
from the calculation of Consolidated Tangible Net Worth.
5.4 Conduct of Business and Corporate Existence. The
Company and its Restricted Subsidiaries will each do all things
necessary to preserve, renew and keep in full force and effect
its corporate existence and its rights and franchises by it
deemed necessary to continue its business. Nothing in the
preceding sentence shall preclude the Company from liquidating
any of its Subsidiaries or merging any of its Subsidiaries into
the Company or another of its Subsidiaries so long as such action
does not constitute a breach of any other portion of this
Agreement or result in an Event of Default. The Company and its
Restricted Subsidiaries will each comply with all applicable
laws, ordinances and regulations in respect of the conduct of its
business and the ownership of its property, except to the extent
that noncompliance therewith would not have a Material Adverse
Effect upon its business or condition, financial or other.
5.5 Maintenance of Property and Leases. The Company and
its Restricted Subsidiaries will each keep its properties in such
repair, working order and condition as shall be in the best
interest of its business, and from time to time will make all
needful and proper repairs, renewals, replacements, additions and
improvements thereto, and will comply with the provisions of all
leases to which it is a party or under which it occupies property
so as to prevent any loss or forfeiture thereof or thereunder;
but nothing in this Section 5.5 shall prevent the Company or any
Restricted Subsidiary from selling, abandoning or otherwise
disposing of any property or lease if such property or lease is
no longer useful in the business of the Company or Restricted
Subsidiary.
5.6 Insurance. The Company and its Restricted Subsidiaries
will each keep its assets which are of an insurable character
(except timberlands and other assets which are not customarily
insured by other companies engaged in similar businesses, and
except minor assets which in the aggregate do not constitute a
material part of the assets of the Company or any Restricted
Subsidiary) insured by financially sound and reputable insurers
against loss or damage by fire and extended coverage in amounts
sufficient to prevent the Company or any Restricted Subsidiary
from becoming a coinsurer and not in any event less than 80% of
the actual cash value of the property insured; and will maintain,
with financially sound and reputable insurers, insurance against
other hazards and risks and liability to persons and property to
the extent and in the manner customary for companies in similar
businesses; provided, however, that the Company and any
Restricted Subsidiary may self-insure against liability to
workers in any state or jurisdiction, or may effect workers'
compensation insurance therein through an insurance fund operated
by such state or jurisdiction, if the limitation upon liability
imposed by the applicable workers' compensation law is and
remains effective; provided further, that the Company and its
Restricted Subsidiaries may self-insure or otherwise retain risk
in respect of any insurance coverage required by this Section 5.6
to the extent of 1/2 of 1% of Consolidated Net Tangible Assets.
The foregoing retainage of risk may be structured as a deductible
or other direct risk retention feature or it may be structured by
placement of the required insurance coverage with a Subsidiary
insurance company (the "Insurance Company") so long as the
Insurance Company reinsures the required coverage with
financially sound and reputable reinsurance companies to the
extent necessary to ensure that the total portion of required
coverage risk retained by the Company and its Subsidiaries
(including the Insurance Company) is less than 1/2 of 1% of
Consolidated Net Tangible Assets. Coverage which the Company
elects to carry in excess of the amount required by this Section
5.6 may be carried subject to any level of risk retention deemed
appropriate by the Company.
5.7 Use of Proceeds. The Company shall not, and shall not
suffer or permit any Subsidiary to, use any portion of the Loan
proceeds, 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, or
(iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock.
SECTION 6. FINANCIAL COVENANTS
From the date hereof, and so long as the Commitment of any
Bank shall be outstanding, and until the payment in full of all
sums owed hereunder and under the Notes, and the performance of
all other obligations of the Company under this Agreement, the
Company agrees that, unless the Majority Banks shall otherwise
consent in writing, it will comply with the financial covenants
set forth in Sections 6.1 through 6.4 below. For the purposes of
this Section 6, amounts (including but not limited to asset,
liability, income, and expense items) related to the Canadian
Entity shall be excluded from the covenant calculations after the
Exclusion Date (other than distributions received by the Company
as specified in Section 6.1.2(z)) whether or not such amounts are
consolidated in the financial statements of the Company under
Generally Accepted Accounting Principles.
6.1 Senior Funded Debt. Neither the Company nor any
Restricted Subsidiary will create, assume or guarantee, or
otherwise become liable, directly or indirectly, upon or in
respect of any Senior Funded Debt unless immediately after giving
effect thereto and to the retirement of any Senior Funded Debt
which is concurrently being retired each of the following
computations would be satisfied:
6.1.1 Maximum Leverage Ratio. The Consolidated Senior
Funded Debt of the Company and its Restricted Subsidiaries at the
end of each fiscal quarter shall be less than 150% of the
Consolidated Tangible Net Worth of the Company and its Restricted
Subsidiaries.
6.1.2 Interest Coverage Ratio. The sum of (x)
Consolidated Funds Provided by Operations plus (y) interest on
Consolidated Indebtedness and Consolidated income tax expense
(net of the provisions for deferred income taxes) to the extent
that such interest and taxes were deducted in computing
Consolidated Net Income plus (z) distributions received by the
Company and its Restricted Subsidiaries from Unrestricted
Subsidiaries (and, after the Exclusion Date, the Canadian Entity)
shall, as of each date shown below, have been in an amount at
least equal to the percentage specified below of the actual
interest expense as reported in the Consolidated income statement
for the four (4) quarter period ending on the date set forth
opposite such percentage:
Interest Coverage Date
175% March 31, June 30, and September 30, 1994
200% December 31, 1994; March 31, June 30, and
September 30, 1995
300% December 31, 1995, and each quarter-end date
thereafter
6.2 Restrictions on Secured Debt. The Company will not
itself, and will not permit any Restricted Subsidiary to, incur,
issue or assume any Indebtedness secured after the date hereof by
pledge of, or mortgage or lien on, any Principal Property of the
Company or any Restricted Subsidiary or any shares of Capital
Stock of or Indebtedness of any Restricted Subsidiary (mortgages,
pledges and liens being hereinafter in this Section 6.2 called
"Mortgage" or "Mortgages"), without effectively providing that
the Company's obligations under this Agreement and the Notes
(together with, if the Company shall so determine, the Company's
guaranty of debt issued in connection with the 1989 ESOP and any
other indebtedness of the Company or such Restricted Subsidiary
then existing or thereafter created which is not subordinate to
the Loans) shall be secured equally and ratably with (or, at the
option of the Company, prior to) such secured Indebtedness until
such secured Indebtedness has been repaid in full and the liens
relating thereto have been released (provided that at the time of
such payment no Event of Default exists), unless, after giving
effect thereto, the aggregate amount of all such secured
Indebtedness would not exceed 10% of Consolidated Net Tangible
Assets of the Company and its Restricted Subsidiaries; provided,
however, that this Section 6.2 shall not apply to, and there
shall be excluded from secured Indebtedness in any computation
under this Section 6.2, Indebtedness secured by:
6.2.1 Mortgages on property of, or on any shares of
Capital Stock of or Indebtedness of, any corporation existing at
the time such corporation becomes a Restricted Subsidiary;
6.2.2 Mortgages in favor of the Company or any
Restricted Subsidiary;
6.2.3 Mortgages in favor of any governmental body to
secure progress, advance or other payments pursuant to any
contract or provision of any statute;
6.2.4 Mortgages on property, shares of Capital Stock
or Indebtedness existing at the time of acquisition thereof
(including acquisition through merger or consolidation) or to
secure the payment of all or any part of the purchase price
thereof or construction thereon or to secure any Indebtedness
incurred prior to, at the time of, or within 180 days after the
later of the acquisition of such property, shares of Capital
Stock or Indebtedness or the completion of construction for the
purpose of financing all or any part of the purchase price
thereof or construction thereon; provided, however, that if such
financing is in connection with the acquisition of any
Timberlands, and the Board of Directors of the Company has
determined, prior to or at the time of such acquisition, that the
Company will seek such financing (from a lender or investor not
including the Company or any Subsidiary), then the applicable
Mortgage shall be deemed to be included in this Section 6.2.4 if
such Mortgage is created within a further 180 days after the end
of such first 180-day period;
6.2.5 Mortgages securing obligations issued by a
state, territory or possession of the United States, or any
political subdivision of any of the foregoing, or the District of
Columbia, to finance the acquisition or construction of property,
and on which the interest is not, in the opinion of tax counsel
of recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, includable in gross income of the
holder by reason of Section 103(a)(1) of the Code (or any
successor to such provision) as in effect at the time of the
issuance of such obligations;
6.2.6 Any extension, renewal or replacement (or
successive extensions, renewals or replacements), as a whole or
in part, of any Mortgage referred to in the foregoing Sections
6.2.1 to 6.2.5, inclusive; provided, however, that such
extension, renewal or replacement Mortgage shall be limited to
all or part of the same property, shares of Capital Stock or
Indebtedness that secured the Mortgage extended, renewed or
replaced (plus improvements on such property).
6.2.7 Any mortgage, pledge, lien, sale, or assignment
of Margin Stock.
6.3 Minimum Tangible Net Worth. The Company and its
Restricted Subsidiaries shall maintain, as of the end of each
fiscal quarter, Consolidated Tangible Net Worth equal to at least
$1,500,000,000, plus the sum of 50% of cumulative quarterly
Consolidated Net Income, to the extent any quarterly Consolidated
Net Income is not a loss ("Consolidated Minimum Tangible Net
Worth") for the period beginning with the fiscal quarter ending
March 31, 1994.
For purposes of future calculations of compliance under
this Section 6.3, on the Exclusion Date, the Consolidated Minimum
Tangible Net Worth required shall be reduced by the amount of the
Company's investment in the Canadian Entity on the Exclusion
Date.
6.4 Consolidation, Merger, and Sale of All Assets. The
Company shall not convey or transfer its properties and assets
substantially as an entirety to any Person or Persons in a single
transaction or related series of transactions. The Company shall
not consolidate with or merge with any Person unless each of the
following requirements is satisfied:
6.4.1 The Company shall be the surviving corporation
in any such consolidation or merger.
6.4.2 Immediately after giving effect to such
consolidation or merger, no Event of Default, and no event which,
after notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing.
6.4.3 No such consolidation, merger, conveyance or
transfer shall be entered into or made by the Company with or to
another corporation which has outstanding any obligations secured
by a Mortgage (as defined in Section 6.2) if, as a result of such
consolidation, merger, conveyance or transfer, any Principal
Property of the Company or any Restricted Subsidiary would be
subjected to the lien of such Mortgage and such Mortgage is not
expressly excluded from the restrictions or permitted by the
provisions of Section 6.2 unless simultaneously therewith or
prior thereto effective provision shall be made for the securing
of all of the Company's obligations under this Agreement and the
Notes (together with, if the Company shall so determine, the
Company's guaranty of debt issued in connection with the 1989
ESOP and any other Indebtedness of the Company now existing or
hereafter created which is not subordinated to the obligations of
the Company hereunder and under the Notes), equally and ratably
with (or, at the option of the Company, prior to) the obligations
secured by such Mortgage by a lien upon such Principal Property.
Any corporation formed by a merger or consolidation
permitted by this Section 6.4 shall constitute for all purposes
hereunder the successor to the Company and have and be entitled
to exercise all rights, powers and privileges of the Company
hereunder and be obligated to fully and completely perform all
duties and obligations of the Company hereunder.
SECTION 7. DEFAULT
7.1 Events of Default. The occurrence of one or more of
the following events shall constitute an "Event of Default" under
this Agreement:
7.1.1 If default shall be made in the payment of
principal on any of the Loans when and as the same shall become
due and payable or in any of the covenants contained in
Sections 6.1, 6.2, 6.3, and 6.4; or
7.1.2 If default shall be made in the payment of any
interest on any of the Loans or any commitment fees or other
amounts when and as the same shall become due and payable and any
such default shall continue for a period of six days; or
7.1.3 If default shall be made in the observance or
performance of any other covenant or provision of the Notes or of
this Agreement, and such default shall continue for a period of
30 days after the Company shall have obtained knowledge thereof;
or
7.1.4 If default shall be made under the terms of any
note, debenture, bond, agreement or other instrument relating to
money borrowed by the Company or a Restricted Subsidiary with an
unpaid principal balance in excess of $5,000,000 and such default
shall continue beyond the period of grace, if any, specified
therein, but excluding any default on any note secured by a
mortgage or deed of trust on property held by it if the only
recourse of the holder of such note shall be to foreclose the
mortgage or deed of trust; and provided further that if the
Company or Restricted Subsidiary committing such default shall
effect a cure thereof or obtain a waiver thereof from the holder
of such debt prior to action by the Majority Banks pursuant to
Section 7.2 hereof, no Event of Default shall exist under this
Section; or
7.1.5 If any representation or warranty made by the
Company in this Agreement, or in connection with any amendment
hereof, or in any certificate delivered or deemed to have been
delivered pursuant hereto shall prove to have been untrue in any
material respect as of the date made; or
7.1.6 If the Company or any Material Subsidiary shall
be involved in financial difficulties as evidenced by:
(a) The Company or any Material 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
(b) (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Company or any Material
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 Material 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 60 days after commencement, filing or levy;
(ii) the Company or any Material 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 Material 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.
7.1.7 If any judgments or awards for the payment of
money in excess of $1,000,000 in the aggregate shall have been
rendered against the Company or any Restricted Subsidiary and the
same shall have remained unsatisfied and in effect, without stay
of execution, for any period of 60 consecutive days.
7.1.8 (i) The occurrence of an ERISA Event with
respect to a Pension Plan or Multiemployer Plan which has
resulted or is 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 20% of
Consolidated Tangible Net Worth; (ii) the commencement or
increase of contributions to, or the adoption of or the amendment
of a Pension Plan by the Company or an ERISA Affiliate which has
resulted or will result in an increase in net Unfunded Pension
Liability among all Pension Plans in an aggregate amount in
excess of 20% of Consolidated Tangible Net Worth; or (iii) the
Company or an ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan, which has resulted or
could reasonably be expected to result in a Material Adverse
Effect.
7.2 Acceleration of Loans. If any Event of Default shall
occur and shall be continuing, the Majority Banks, by notice
given in writing to the Company by either Administrative Agent,
may terminate the Banks' Commitments and/or declare the unpaid
balance of all Loans, and interest accrued and unpaid thereon, to
be forthwith due and payable, and thereupon such balance and such
interest shall become so due and payable without presentation,
protest or further demand or notice of any kind, all of which are
hereby expressly waived; provided that, if the Event of Default
occurring shall be an event specified in Section 7.1.6, all
Commitments shall automatically terminate and all sums owed in
respect of any Loan shall be automatically due and payable
immediately upon the occurrence of such event without the
necessity of any action by either Administrative Agent, the
Majority Banks, or any Bank.
SECTION 8. THE ADMINISTRATIVE AGENTS
8.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints, designates and authorizes the
Administrative Agents to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to it by the terms
of this Agreement, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement, the
Administrative Agents shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Administrative Agents 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 otherwise exist against the
Administrative Agents.
8.2 Delegation of Duties. The Administrative Agents may
execute any of their duties under this Agreement by or through
agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such
duties. The Administrative Agents shall not be responsible to
the Banks for the negligence or misconduct of any agent or
attorney-in-fact that they select with reasonable care.
8.3 Liability of Administrative Agents. None of the
Administrative Agents or any 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 the transactions
contemplated hereby (except for their own gross negligence or
willful misconduct), or (ii) to be responsible in any manner to
any of the Banks for any recital, statement, representation or
warranty made by the Company or any Subsidiary of the Company, or
any officer thereof, contained in this Agreement or in any
certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agents under
or in connection with, this Agreement or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or for any failure of the Company or any other party to
perform its obligations hereunder. The Administrative Agents and
any Agent-Related Persons shall not 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 any
conditions of, this Agreement or to inspect the properties, books
or records of the Company or any of the Company's Subsidiaries.
8.4 Reliance by Administrative Agents.
(a) The Administrative Agents 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 Administrative
Agents. The Administrative Agents shall be fully justified in
failing or refusing to take any action under this Agreement
unless they shall first receive such advice or concurrence of the
Majority Banks as they deem appropriate and, if they so request,
they shall first be indemnified to their satisfaction by the
Banks against any and all liability and expense which may be
incurred by them by reason of taking or continuing to take any
such action. The Administrative Agents shall in all cases be
fully protected in acting, or in refraining from acting, under
this Agreement 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 4, 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 Administrative Agents to such Bank for
consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank.
8.5 Notice of Default. The Administrative Agents shall not
be deemed to have knowledge or notice of the occurrence of any
Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the
Administrative Agents for the account of the Banks, unless the
Administrative Agents shall have received written notice from a
Bank or the Company referring to this Agreement, describing such
Event of Default and stating that such notice is a "notice of
default." The Administrative Agents will notify the Banks of
their receipt of any such notice. The Administrative Agents
shall take such action with respect to such Event of Default as
may be requested by the Majority Banks in accordance with Section
7.2; provided, however, that unless and until the Administrative
Agents have received any such request, the Administrative Agents
may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Event of Default as
they shall deem advisable in the best interest of the Banks.
8.6 Credit Decision. Each Bank acknowledges that neither
of the Administrative Agents or any Agent-Related Persons have
made any representation or warranty to it, and that no act by the
Administrative Agents hereinafter taken, including any review of
the affairs of the Company and its Subsidiaries, shall be deemed
to constitute any representation or warranty by the
Administrative Agents or any Agent-Related Persons to any Bank.
Each Bank represents to the Administrative Agents that it has,
independently and without reliance upon either of the
Administrative Agents or any Agent-Related Persons 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 either of the Administrative Agents or any Agent-
Related Persons 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 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 Administrative Agents, the Administrative Agents
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 Administrative Agents or any Agent-
Related Persons.
8.7 Indemnification.
(a) Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the
Administrative Agents (or any 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 liabilities arising out of their actions
related to this Agreement; provided, however, that no Bank shall
be liable for the payment to the Administrative Agents (or any
Agent-Related Persons) of any portion of such liabilities
resulting solely from such Persons gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Administrative Agents upon demand for their ratable
share of any costs or out-of-pocket expenses (including all fees
and disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements
of internal counsel) incurred by the Administrative Agents 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 or any document contemplated by or referred to herein,
to the extent that the Administrative Agents are 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
Administrative Agents.
(b) The Company shall indemnify and hold harmless the
Administrative Agents, the Banks, and their respective directors,
officers, agents, and employees from and against all losses,
claims, damages, expenses, or liabilities, including but not
limited to legal (including all fees and disbursements of any law
firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel) or
other expenses incurred in connection with investigating,
preparing to defend, or defending any such loss, claim, damage,
expense, or liability incurred in respect of the financing
contemplated hereby or the proposed use of the proceeds of such
financing. This indemnity shall not apply to claims by a Bank
(including the Administrative Agents or their respective Agent-
Related Persons) against another Bank (including Administrative
Agents or their respective Agent-Related Persons).
8.8 Administrative Agents in Individual Capacity. The
Administrative Agents or any Agent-Related Persons 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 as though the
Administrative Agents were not the Administrative Agents
hereunder and without notice to or consent of the Banks. The
Banks acknowledge that, pursuant to such activities, the
Administrative Agents may receive information regarding the
Company or its Subsidiaries (including information that may be
subject to confidentiality obligations in favor of the Company or
such Subsidiary) and acknowledge that the Administrative Agents
shall be under no obligation to provide such information to them.
With respect to their Loans, the Administrative Agents shall have
the same rights and powers under this Agreement as any other Bank
and may exercise the same as though they were not the
Administrative Agents, and the terms "Bank" and "Banks" include
the Administrative Agents in their individual capacities.
8.9 Successor Administrative Agents. The Administrative
Agents may, individually or together, and at the request of the
Majority Banks shall, resign as Administrative Agents upon
30 days' notice to the Banks and the Company. If either of the
Administrative Agents resigns under this Agreement, the Company
may elect to have the remaining Administrative Agent succeed to
all the rights, powers, and duties of the resigning
Administrative Agent. If both of the Administrative Agents
resign 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. If no
successor agent is appointed prior to the effective date of the
resignation of the Administrative Agents, the Administrative
Agents 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 Administrative Agents and the term
"Administrative Agents" shall mean such successor agent and the
retiring Administrative Agents' appointment, powers, and duties
as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Section 8 shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was an Administrative Agent under this Agreement. If no
successor agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective
and the Banks and the Company shall perform all of the duties of
the Administrative Agents hereunder until such time, if any, as
the Majority Banks appoint a successor agent which successor
agent shall be approved by the Company as provided for above.
SECTION 9. MISCELLANEOUS
9.1 Waivers. No failure on the part of any Bank or the
Administrative Agents to exercise, and no delay in exercising,
and no course of dealing with respect to, any right hereunder
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
9.2 Expenses. The Company agrees to promptly pay, whether
or not any Loan is made hereunder; (i) the reasonable fees and
disbursements of the Special Counsel to the Administrative Agents
in connection with the negotiation of this Agreement and
preparation for the initial borrowing hereunder; (ii) all taxes,
if any, upon any documents or transactions pursuant to this
Agreement; provided that each Bank shall pay all of its income
taxes owing to the United States, any state or their respective
political subdivisions and income taxes owing to any country
located outside the United States; and (iii) costs of collection
or enforcement incurred by the Administrative Agents and any Bank
(including allocated costs for in-house legal services and
reasonable counsel fees) in connection with any Event of Default
or any effort to collect sums past due hereunder.
9.3 Offsets. Nothing in this Agreement shall be deemed a
waiver or prohibition of any Bank's right of banker's lien or
offset.
9.4 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the law of the State
of California.
9.5 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart.
9.6 Notices. Each party has specified beneath its
signature block to this Agreement the addresses by which notices
may be sent to such Person by means of manual delivery, mail,
express delivery, and telecopy. Notices may be given in
connection with this Agreement by any party to any other party by
any of the foregoing means at the address for such means
specified in respect of such party beneath its signature block.
Except for notices of borrowings given pursuant to Sections
3.4.1, 3.4.2, and 3.4.3 which shall be effective upon receipt by
the Administrative Agents, notices shall be deemed effectively
given as follows: (a) when notices are manually delivered, they
shall be effective upon delivery to a responsible person at the
office of the party to whom they are intended as specified
beneath such party's signature block on this Agreement; (b) when
notices are given by mail or express delivery service, they shall
be effective when they are deposited in the mail (certified or
registered, return receipt requested) or posted with an express
delivery company; or (c) notices given by telecopy shall be
effective upon receipt by the sending party of telephonic
confirmation of receipt from the party to whom the notice is
intended.
Whenever this Agreement provides that the Company shall
give notice to the Administrative Agents of certain matters, the
Administrative Agents shall promptly, after receipt of any such
notice, notify the other Administrative Agent (or confirm receipt
of such notice by the other Administrative Agent) and notify each
Bank of the contents of such notice by (a) telecopy in the case
of any notice under Sections 3.4 or 3.5 and (b) any means
permitted by this Section 9.6 in the case of any other notice.
Such notification to the Domestic Banks shall be made by the
Domestic Administrative Agent and to the Foreign Banks by the
Foreign Administrative Agent.
The Company and the Administrative Agents may change
any of the addresses for notices set forth beneath their
respective signature blocks at any time by giving notice of such
change in accordance with the provisions of this Agreement to all
parties to this Agreement. Any Bank may change any of the
addresses for notices set forth beneath its respective signature
block at any time by giving notice of such change in accordance
with the provisions of this Agreement to both of the
Administrative Agents and the Company.
Any agreement of the Administrative Agents 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 Administrative Agents and the Banks shall be entitled to rely
on the authority of any Person they in good faith believe to be a
Person authorized by the Company to give such notice and the
Administrative Agents 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 Administrative Agents or the Banks in reliance
upon such telephonic or facsimile notice. Except where the
Administrative Agents or the Banks have failed to act in good
faith, the obligation of the Company to repay Loans where it did
not receive the benefit of the proceeds, or pay any other amounts
due hereunder, shall not be affected in any way or to any extent
by any failure by the Administrative Agents and the Banks to
receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agents and the Banks
of a confirmation which is at variance with the terms understood
by the Administrative Agents and the Banks to be contained in the
telephonic or facsimile notice. Notwithstanding anything set
forth in this Section 9.6, identification of the Company's bank
account to which any funds are to be advanced or transferred may
only be in writing.
9.7 Amendments. This Agreement may not be amended,
supplemented or modified, nor may any of its terms be waived,
except by written instruments signed by the Company and the
Majority Banks; provided, however, that no amendatory,
supplemental or modifying agreement or waiver shall (i) extend
the term of, or increase the amount of, the Commitment of any
Bank, reduce the rate of, or extend the time for payment of,
commitment fees payable hereunder, extend the maturity of any
Loan or reduce the rate of interest thereon, extend the time of
payment of interest thereon or reduce the principal amount
thereof or change the provisions contained in Sections 3.8, 3.10,
or 3.12, (ii) change the percentage specified in the definition
of Majority Banks in Section 1.1 of this Agreement, or (iii)
amend this Section 9.7, without the written consent of all of the
Banks. Any such amendatory, supplemental or modifying agreement
or waiver shall apply equally to each of the Banks and shall be
binding upon the Company and all of the Banks. Nothing contained
in the foregoing shall prohibit any Bank from waiving any of its
rights hereunder so long as such waiver shall have no effect on
the rights of any other Bank hereunder. Notwithstanding the
foregoing, no amendment, waiver, or consent shall, unless in
writing and signed by the Administrative Agents in addition to
the Majority Banks, affect the rights or duties of the
Administrative Agents under this Agreement.
9.8 Successors. This Agreement shall be binding upon and
inure to the benefit of the Company, the Administrative Agents
and the Banks and their respective successors and assigns.
9.9 Assignment. The Company shall not sell or assign this
Agreement or any of its rights and powers hereunder or delegate
its obligations hereunder to any Person without the prior written
consent of all of the Banks except as permitted by Section 6.4.
9.10 Dispositions. Each Bank represents to the Company that
it will make the Loans to be made by it hereunder in the ordinary
course of its commercial banking business and will not transfer
any interest in any such Loan in violation of the provisions of
this Agreement or of the Securities Act of 1933, as amended, and
the regulations thereunder.
9.11 Effective Date. This Agreement shall be and become
effective as of April 15, 1994, when the Administrative Agents
shall have received duly executed counterparts hereof from all of
the parties hereto and all fees and expenses due upon closing to
the Administrative Agents and Banks in connection with this
Agreement have been paid. Any Bank may sign a counterpart and
send the signature pages bearing its signature to the appropriate
Administrative Agent by facsimile transmissions, followed by
prompt delivery of an original of such signature pages to the
appropriate Administrative Agent.
9.12 Consent to Jurisdiction. The Company hereby
irrevocably submits to the nonexclusive jurisdiction of any state
or federal court of the state of California in any action or
proceeding arising out of or relating to this Agreement, and the
Company hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in any such
court. The Company hereby irrevocably waives to the fullest
extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. Nothing
in this Section 9.12 shall affect the right of the Administrative
Agents or any Bank to bring any action or proceeding against the
Company or its property in the courts of any other jurisdiction.
9.13 Confidentiality. Information provided to the Banks
pursuant to Section 5.1 shall be maintained in confidence by the
Banks in accordance with the following:
9.13.1 The term "Confidential Information" means all
information designated by the Company as confidential, whether of
an operational, economic, or accounting nature, except
information which is now or hereafter becomes generally known in
the financial community through no fault of the Bank or
information which was in the Bank's possession at the time of
receipt from the Company and which was obtained by the Bank from
third parties lawfully in possession of such information without
any breach by such third party of a duty of confidentiality to or
for the benefit of the Company or by analysis by the Bank of
nonconfidential information possessed by it. Disclosures made
under this Agreement which are specific shall not be deemed to be
within the foregoing exceptions merely because they are embraced
by more general information possessed by the Bank which is not
confidential information within the meaning of the preceding
sentence.
9.13.2 Each Bank shall designate a specific department
or departments or specific representatives for receiving
Confidential Information.
9.13.3 Each Bank severally agrees:
a. Not to make any use whatsoever of the
Confidential Information except in connection with present or
future Loans to the Company or any of its Subsidiaries or
Affiliates;
b. Not to reveal any Confidential Information to
any third parties, to any other divisions, departments,
Affiliates, or subsidiaries of the Bank, or to any officer or
employee of the Bank who does not have a direct need to know the
Confidential Information in connection with present or future
Loans to the Company or any of its Subsidiaries or Affiliates;
and
c. To file the Confidential Information in secure
places which ensure restricted accessibility.
9.13.4 Notwithstanding the provisions of Section
9.13.3 any Bank may disclose the Confidential Information, as
required from time to time, in the following circumstances: (i)
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; (ii) pursuant to
subpoena or other court process; (iii) when required to do so in
accordance with the provisions of any applicable Requirement of
Law; (iv) to the extent reasonably required in connection with
any litigation or proceeding to which the Administrative Agents,
any Bank or their respective Affiliates may be party; (v) to the
extent reasonably required in connection with the exercise of any
remedy hereunder; (vi) to such Bank's independent auditors and
other professional advisors; and (vii) as to any Bank, as
expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Company is party
with such Bank; provided that if any Bank is served with legal
process which may require disclosure of Confidential Information
it shall promptly notify the Company of such fact.
9.13.5 The provisions hereof shall remain in effect
for so long as this Agreement shall remain in effect plus a
period of three years thereafter.
9.13.6 Each Bank agrees that it will periodically sign
a nondisclosure agreement reconfirming its obligations under this
Section 9.13.
9.14 Interpretation. The following rules shall apply to the
construction of this Agreement unless the context requires
otherwise: (a) the singular includes the plural and the plural
the singular; (b) words importing any gender include the other
genders; (c) references to statutes are to be construed as
including all statutory provisions consolidating, amending, or
replacing the statute to which reference is made, and all
regulations adopted and publications promulgated pursuant to such
statutes; (d) references to "writing" include printing,
photocopy, typing, lithography, and other means of reproducing
words in a tangible, visible form; (e) the words "including,"
"includes," and "include" shall be deemed to be followed by the
words "without limitation"; (f) references to sections (or
subdivisions of sections), exhibits, appendices, annexes, or
schedules are to those of this Agreement unless otherwise
indicated; (g) references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments
and other modifications to such instruments, but only to the
extent that such amendments and other modifications are permitted
or not limited by the terms of this Agreement; and (h) references
to Persons include their respective permitted successors and
assigns.
9.15 Entire Agreement. This Agreement embodies the entire
Agreement and understanding among the Company, the Banks, and the
Administrative Agents and supersedes all prior or contemporaneous
agreements and understandings of such persons, verbal or written,
relating to the subject matter hereof, except for the fee letter
between the Company and the Administrative Agents.
9.16 Waiver of Jury Trial. Each of the Administrative
Agents, the Banks, and the Company hereby knowingly, voluntarily,
and intentionally waives any rights it may have to a trial by
jury in respect of any litigation based hereon, or arising out
of, under, or in connection with this Agreement. This provision
is a material inducement for the Administrative Agents and the
Banks entering into this Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to
be signed as of the date first set forth above.
BOISE CASCADE CORPORATION
By
Vice President and Treasurer
Address for notices given manually, by
mail, or by express delivery:
Attention Treasurer
One Jefferson Square
Boise, Idaho 83702
Address for notices given by telecopy:
208/384-4920
Attention Treasurer
DM40228A.FIN
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS DOMESTIC
ADMINISTRATIVE AGENT
By
Title Vice President
Address for Notices:
Bank of America National Trust and
Savings Association
Attention: Shannon Collins
Vice President
1455 Market Street, 12th Floor
San Francisco, CA 94103
Telecopy No.: 415/622-4894
NATIONAL WESTMINSTER BANK PLC, AS
FOREIGN ADMINISTRATIVE AGENT
Los Angeles Overseas Branch
By
Title Vice President
Address for Notices:
National Westminster Bank Plc
Los Angeles Overseas Branch
Attention: Michael E. Keating
Senior Vice President
400 South Hope Street, Suite 1000
Los Angeles, CA 90071
Telecopy No.: 213/623-6540
DM40228A.FIN
Commitment Bank Name, Signature, and Address for
Notices
$40,000,000. ABN/AMRO BANK NV
By
Title
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: ABN Amro Bank NV
555 California Street
Suite 2750
San Francisco, CA 94104-1603
Telecopy No.: 415/362-3524
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: ABN Amro Bank NV
555 California Street
Suite 2750
San Francisco, CA 94104-1603
Telecopy No.: 415/362-3524
Commitment Bank Name, Signature, and Address for
Notices
$47,500,000. BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: Bank of America National Trust
and Savings Association
Attention: Daryl Hurst
Account Administrator
1850 Gateway Boulevard
Concord, CA 94520-3281
Telecopy No.: 510/675-7531
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Bank of America National Trust
and Savings Association
Attention: Daryl Hurst
Account Administrator
1850 Gateway Boulevard
Concord, CA 94520-3281
Telecopy No.: 510/675-7531
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 BANK OF MONTREAL
By
Title Director
Domestic Lending Office (For Reference
Rate Loans)
Address: Bank of Montreal
115 S. LaSalle Street, 11W
Chicago, Illinois 60603
Phone No: 312/750-3738
Fax No.: 315/750-4344
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Bank of Montreal
115 S. LaSalle Street, IIW
Chicago, Illinois 60603
Phone No: 312/750-3738
Fax No.: 315/750-4344
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 BARCLAYS BANK PLC
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: Barclays Bank Plc
222 Broadway
New York, NY 10038
Phone No: 212/412-5876
Telecopy No.: 212/412-4090
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Barclays Bank Plc
222 Broadway
New York, NY 10038
Phone No: 212/412-5876
Telecopy No.: 212/412-4090
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 CIBC INC.
By
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: CIBC Inc.
Two Paces Ferry Road
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Telecopy No.: 404/319-4950
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: CIBC Inc.
Two Paces Ferry Road
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Telecopy No.: 404/319-4950
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 THE CHASE MANHATTAN BANK, N.A.
By
Title Second Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: 1 Chase Plaza
New York, NY 10081
Attn: Loretta Fava
Telephone: 212/552-7529
Telecopy No.: 212/552-1477
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 1 Chase Plaza
New York, NY 10081
Attn: Loretta Fava
Telephone: 212/552-7529
Telecopy No.: 212/552-1477
Commitment Bank Name, Signature, and Address for
Notices
$40,000,000 CHEMICAL BANK
By
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: Chemical Bank
270 Park Avenue, 9th Floor
New York, NY 10017
Attn: Abigail Garcia
Telecopy No.: 212/270-2111
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Chemical Bank
270 Park Avenue, 9th Floor
New York, NY 10017
Telecopy No.: 212/270-1111
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By
Title Authorized Signatory
Domestic Lending Office (For Reference
Rate Loans)
Address: Credit Lyonnais Cayman Island
Branch
c/o Credit Lyonnais New York
Branch
Attention: Rod Hurst
Vice President, Forest
Products Paper/Group
1301 Avenue of the Americas
New York, NY 10019
Telecopy No.: 212/261-7368
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Credit Lyonnais Cayman Island
Branch
c/o Credit Lyonnais New York
Branch
Attention: Rod Hurst
Vice President, Forest
Products Paper Group
1301 Avenue of the Americas
New York, NY 10019
Telecopy No.: 212/261-7368
Commitment Bank Name, Signature, and Address for
Notices
$40,000,000 CREDIT SUISSE
By
Title: Associate
Domestic Lending Office (For Reference
Rate Loans)
Address: 800 Wilshire Boulevard
8th Floor
Los Angeles, CA 90017
Attn: Maria Gaspara
Telecopy No.: 213/955-8345
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 800 Wilshire Boulevard
8th Floor
Los Angeles, CA 90017
Attn: Maria Gaspara
Telecopy No.: 213/955-8345
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 FIRST BANK NATIONAL ASSOCIATION
By
Title: Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: First Bank Place, MPFP0704
601 Second Avenue South
Minneapolis, MN 55402-4302
Telecopy No.: 612/973-0824
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: First Bank Place, MPFP0704
601 Second Avenue South
Minneapolis, MN 55402-4302
Telecopy No.: 612/973-0824
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 FIRST INTERSTATE BANK OF OREGON N.A.
By
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: First Interstate Bank of
Oregon, N.A.
Oregon Corporate F19
Attn: Patrik G. Norris, Vice
President
1300 S.W. Fifth Avenue
Portland, OR 97201
Mailing
Address: P.O. Box 3131
Portland, OR 97208-3131
Telecopy No.: 503/220-4896
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: First Interstate Bank of
Oregon, N.A.
Oregon Corporate F19
Attn: Patrik G. Norris, Vice
President
1300 S.W. Fifth Avenue
Portland, OR 97201
Mailing
Address: P.O. Box 3131
Portland, OR 97208-3131
Telecopy No.: 503/220-4896
Commitment Bank Name, Signature, and Address for
Notices
$10,000,000 FIRST SECURITY BANK OF IDAHO, N.A.
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: 119 North Ninth Street
Boise, ID 83730
Telecopy No.: 208/393-2472
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 119 North Ninth Street
Boise, ID 83730
Telecopy No.: 208/393-2472
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED
Los Angeles Agency
By
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: 350 South Grand Avenue
Suite 1500
Los Angeles, CA 90071
Telecopy No.: 213/488-9840
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 350 South Grand Avenue
Suite 1500
Los Angeles, CA 90071
Telecopy No.: 213/488-9840
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
Los Angeles Agency
By
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: The Long-Term Credit Bank of
Japan, Ltd.,
Los Angeles Agency
444 S. Flower, Ste. 3700
Los Angeles, CA 90042
Attn: Diane Huynh
Telecopy No.: 213/626-1067
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: The Long-Term Credit Bank of
Japan, Ltd.,
Los Angeles Agency
444 S. Flower, Ste. 3700
Los Angeles, CA 90042
Attn: Diane Huynh
Telecopy No.: 213/626-1067
Commitment Bank Name, Signature, and Address for
Notices
$40,000,000 MELLON BANK, NATIONAL ASSOCIATION
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: Three Mellon Bank Center
Room 2304
Pittsburgh, PA 15259-0003
Telecopy No.: 412/234-5049
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Three Mellon Bank Center
Room 2304
Pittsburgh, PA 15259-0003
Telecopy No.: 412/234-5049
Commitment Bank Name, Signature, and Address for
Notices
$40,000,000 MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: c/o J. P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, DE 19713-2107
Telecopy No.: 302/634-1094
302/634-4222
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: c/o J. P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, DE 19713-2107
Telecopy No.: 302/634-1094
302/634-4222
Commitment Bank Name, Signature, and Address for
Notices
$47,500,000 NATIONAL WESTMINSTER BANK PLC
By
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: National Westminster Bank Plc
Los Angeles Overseas Branch
Attention: Michael E. Keating
Senior Vice President
400 South Hope Street, Suite
1000
Los Angeles, CA 90071
Telecopy No.: 213/623-6540
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: National Westminster Bank Plc
Los Angeles Overseas Branch
Attention: Michael E. Keating
Senior Vice President
400 South Hope Street, Suite
1000
Los Angeles, CA 90071
Telecopy No.: 213/623-6540
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 NATIONSBANK OF NORTH CAROLINA, N.A.
By
Title: Senior Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: 100 N. Tryon Street
8th Floor
Charlotte, NC 28255
Telecopy No.: 204 386-3271
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 100 N. Tryon Street
8th Floor
Charlotte, NC 28255
Telecopy No.: 204 386-3271
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 THE NORTHERN TRUST COMPANY
By
Title: Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: 50 S. LaSalle Street
Chicago, IL 60675-0002
Telecopy No.: 312 630-1566
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 50 S. LaSalle Street
Chicago, IL 60675-0002
Telecopy No.: 312 630-1566
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 ROYAL BANK OF CANADA
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: Royal Bank of Canada Los
Angeles
Linda Swanston
Loans Administration
600 Wilshire Boulevard, Suite
800
Los Angeles, CA 90017
Telephone: 212/858-7176
Telecopy No.: 718/522-6292
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Royal Bank of Canada Los
Angeles
Linda Swanston
Loans Administration
600 Wilshire Boulevard, Suite
800
Los Angeles, CA 90017
Telephone: 212/858-7176
Telecopy No.: 718/522-6292
Commitment Bank Name, Signature, and Address for
Notices
$15,000,000 SWISS BANK CORPORATION
By
Title Director, Merchant Banking
By
Title Associate Director, Merchant
Banking
Domestic Lending Office (For Reference
Rate Loans)
Address: Swiss Bank Corporation
101 California Street
Suite 1700
San Francisco, CA 94111-5884
Telecopy No.: 415/956-3882
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Swiss Bank Corporation
101 California Street
Suite 1700
San Francisco, CA 94111-5884
Telecopy No.: 415/956-3882
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 TORONTO DOMINION BANK
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: ____________________
____________________
____________________
Telecopy No.: ____________
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: ____________________
____________________
____________________
Telecopy No.: ____________
Commitment Bank Name, Signature, and Address for
Notices
$40,000,000 UNION BANK OF SWITZERLAND, LOS ANGELES
BRANCH
By
Title
Domestic Lending Office (For Reference
Rate Loans)
Address: 444 South Flower Street
Suite 4500
Los Angeles, CA 90071
Telecopy No.: 213/489-0637
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 444 South Flower Street
Suite 4500
Los Angeles, CA 90071
Telecopy No.: 213/489-0637
Commitment Bank Name, Signature, and Address for
Notices
$25,000,000 WACHOVIA BANK OF GEORGIA, NATIONAL
ASSOCIATION
By
Title Senior Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303
Telecopy No.: 404/332-6898
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303
Telecopy No.: 404/332-6898
Commitment Bank Name, Signature, and Address for
Notices
$10,000,000 WEST ONE BANK, IDAHO
By
James W. Henken
Title Vice President
Domestic Lending Office (For Reference
Rate Loans)
Address: 101 South Capitol Blvd.
Boise, ID 83702
Telecopy No.: 208/383-7563
Eurodollar Lending Office (for LIBOR
Rate Loans)
Address: 101 South Capitol Blvd.
Boise, ID 83702
Telecopy No.: 208/383-7563
SCHEDULE 1
FORM OF PROMISSORY NOTE
San Francisco, California
$__________ April 15, 1994
FOR VALUE RECEIVED, BOISE CASCADE CORPORATION, a Delaware
corporation, promises to pay to the order of _________________
____________________________________________ (the "Bank") at its
offices at ___________________________________________________
______________________________ the principal sum of _________
________________________________________ ($______________), or
so much thereof as shall have been advanced hereunder against and
shall be outstanding in lawful money of the United States
together with interest on said principal sum or the unpaid
balance thereof from time to time outstanding at the Borrowing
Rate as determined from time to time pursuant to the Boise
Cascade Corporation 1994 Revolving Loan Agreement (the "Revolving
Loan Agreement") dated as of April 15, 1994, between the Company
and the Bank together with certain other banks and the
Administrative Agents named therein.
The Revolving Loan Agreement contemplates that the Company
shall have the right to obtain a series of Loans from the Bank
during a period beginning on the date hereof and ending on
June 30, 1997. This Note is intended to evidence the aggregate
principal amount of such Loans which may be from time to time
outstanding as recorded on the schedule attached hereto. All
accrued and unpaid interest owed in respect of each Loan shall be
payable on the last day of the Interest Period or quarterly,
whichever occurs earlier. Each Loan, together with all accrued
and unpaid interest owed in respect thereof, shall be due and
payable on the last day of the Interest Period applicable to such
Loan. All sums owed pursuant to this Note must be paid in full
on or before June 30, 1997. The Revolving Loan Agreement
requires upon satisfaction of certain conditions precedent that
the Bank must advance within the limits of its Commitment
sufficient funds to refinance Loans evidenced hereby as they
mature; failure of the Bank to so refinance Loans shall (provided
such conditions precedent have been satisfied) provide a defense
to the Company's obligations to pay the principal (but not the
interest) owed in respect of such Loan when due to the extent and
for so long as the aggregate principal amount of Loans
outstanding under this Note is equal to or less than the amount
of the Bank's Commitment.
Payment of principal and interest owed pursuant to this Note
may be accelerated in accordance with the provisions of the
Agreement governing such acceleration. If any principal owed
hereunder is not paid when due, it shall bear interest at a rate
two percent above the Reference Rate from time to time in effect
from the date on which payment of such principal was due to the
date on which it is paid. The Company may, at its option, prepay
all or any portion of the principal outstanding under this Note,
but only on the terms and conditions set forth in the Revolving
Loan Agreement.
This Note is one of the Notes referred to in the Revolving
Loan Agreement and is subject in all respects to the terms and
conditions thereof. Any term specifically defined in the
Revolving Loan Agreement shall have the same meaning when used in
this note.
The amount, date, Interest Period and Borrowing Rate for
each Loan made by the Bank, and each payment or prepayment made
on account of the principal thereof or interest thereon, shall be
recorded by the Bank on its books.
BOISE CASCADE CORPORATION
By____________________________
Vice President and Treasurer
SCHEDULE 2
Form of Opinion of Company's Counsel
April 15, 1994
Each of the Banks Which
Is a Party to the Boise
Cascade Corporation 1994
Revolving Loan Agreement
Ladies and Gentlemen:
I am Vice President and General Counsel of Boise Cascade
Corporation ("the Company") and have held that position for a
number of years. As such, I am familiar with the affairs of the
Company and its Subsidiaries, including the state of corporate
organization and business qualification of said corporations, and
am familiar with corporate proceedings undertaken to authorize
the Boise Cascade Corporation 1994 Revolving Loan Agreement dated
as of April 15, 1994, among the Company, Bank of America National
Trust and Savings Association, as Domestic Administrative Agent,
National Westminster Bank Plc, as Foreign Administrative Agent
and the financial institutions parties thereto (the "Loan
Agreement"). In connection with the preparation of this opinion,
I have reviewed such records of the Company and its Subsidiaries
and made such inquiries of officers and employees of the Company
and its Subsidiaries as I deemed necessary and prudent. All
terms specifically defined in the Loan Agreement shall have the
meaning assigned therein wherever they are used in this opinion.
On the basis of the foregoing, I am of the opinion that as of the
date hereof:
1. The Company is a corporation duly organized and validly
existing in good standing under the laws of Delaware, and each
Subsidiary is a corporation, duly organized and validly existing
in good standing under the law of the state or nation of its
incorporation.
2. The Company now has, and did have, at all relevant times
in the past, full power and authority to make and perform the
Loan Agreement and the Notes. The Company and each Subsidiary
have full power and authority to conduct their respective
business as they are currently being conducted.
3. The Company and each Subsidiary are duly qualified, in
good standing, to conduct business in each jurisdiction where
their respective ownership of property or the nature of the
business transacted by them makes such qualification necessary.
4. The execution, delivery and performance of the Loan
Agreement and the Notes were duly authorized by all necessary
corporate action by the Company.
5. Subject to limitations as to enforceability which may
result from bankruptcy, insolvency and other similar laws
affecting creditors' rights generally, the obligations of the
Company under the Loan Agreement and the Notes are legal, valid
and binding obligations which are enforceable in accordance with
their terms.
6. There is no action, proceeding or investigation before
any court or any governmental agency pending or, to the best of
my knowledge, threatened, which, to the best of my knowledge, may
result in any judgment, order, decree or liability having a
Material Adverse Effect upon the business or condition, financial
or other, of the Company, or of the Company and its Subsidiaries
on a combined basis, and no judgment, decree or order has been
issued against the Company which has or will have such an effect.
7. Neither the execution and delivery of the Loan
Agreement, the execution and delivery of the Notes nor the
offering, issuance, performance and compliance with the terms of
the Loan Agreement and the Notes conflict with or result in a
breach of the terms, conditions or provisions of or constitute a
default under, or result in the creation of any lien upon any of
the properties or assets of the Company or any of its
Subsidiaries pursuant to, or require any authorization, consent,
approval, exemption or other action by or notice to or filing
with any court or administrative or governmental body (other than
routine filings after the date hereof with the Securities and
Exchange Commission and/or state Blue Sky authorities) pursuant
to, the charter or bylaws of the Company or any of its
Subsidiaries, any applicable law, statute, rule or regulation or,
to the best of my knowledge, any agreement, instrument, order,
judgment or decree to which the Company or any of its
Subsidiaries is subject.
8. Borrowings in conformity with the Loan Agreement will be
in compliance with Regulation U of the Board of Governors of the
Federal Reserve System.
Sincerely yours,
__________________________________
John W. Holleran
Vice President and General Counsel
DM40228A.FIN