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[Published CUSIP Number: ________________]
CREDIT AGREEMENT
Dated as of December 28, 2006
among
ALEXANDER & BALDWIN, INC.,
as the Borrower,
FIRST HAWAIIAN BANK,
as Agent, Swing Line Lender and L/C Issuer,
and
The Other Lenders Party Hereto,
BANK OF AMERICA, N.A.,
as Syndication Agent
FIRST HAWAIIAN BANK
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Co-Book Managers
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TABLE OF CONTENTS
Section
Page
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ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS........................1
1.01
Defined Terms...........................................1
1.02
Other Interpretive Provisions..........................15
1.03
Accounting Terms.......................................16
1.04
Rounding...............................................16
1.05
Times of Day...........................................16
1.06
Letter of Credit Amounts...............................16
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS..................16
2.01
Committed Loans........................................16
2.02
Borrowings, Conversions and Continuations of
Committed Loans........................................16
2.03
Letters of Credit......................................18
2.04
Swing Line Loans.......................................25
2.05
Prepayments............................................27
2.06
Termination or Reduction of Commitments................28
2.07
Repayment of Loans.....................................28
2.08
Interest...............................................28
2.09
Fees...................................................29
2.10
Computation of Interest and Fees.......................29
2.11
Evidence of Debt.......................................30
2.12
Payments Generally; Agent's Clawback...................30
2.13
Sharing of Payments by Lenders.........................31
2.14
Increase in Commitments................................32
2.15
Reallocation of Commitments Among this Agreement
and the Matson Credit Agreement........................33
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY.................34
3.01
Taxes..................................................34
3.02
Illegality.............................................35
3.03
Inability to Determine Rates...........................36
3.04
Increased Costs........................................36
3.05
Compensation for Losses................................37
3.06
Mitigation Obligations; Replacement of Lenders.........37
3.07
Survival...............................................38
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..............38
4.01
Conditions of Initial Credit Extension.................38
4.02
Conditions to all Credit Extensions....................39
ARTICLE V.
REPRESENTATIONS AND WARRANTIES.........................40
5.01
Organization...........................................40
5.02
Financial Statements...................................40
5.03
Actions Pending........................................41
5.04
Outstanding Debt.......................................41
5.05
Title to Properties....................................41
5.06
Taxes..................................................41
5.07
Conflicting Agreements and Other Matters...............41
5.08
[Intentionally omitted]................................41
5.09
ERISA..................................................41
5.10
Government Consent.....................................42
5.11
Investment Company Status, Etc.........................42
5.12
Real Property Matters..................................42
5.13
Possession of Franchises, Licenses, Etc................42
5.14
Environmental and Safety Matters.......................42
5.15
Hostile Tender Offers..................................42
5.16
Employee Relations.....................................43
5.17
Regulations and Legislation............................43
5.18
Foreign Assets Control Regulations, Etc................43
5.19
Disclosure.............................................43
ARTICLE VI.
AFFIRMATIVE COVENANTS..................................43
6.01
Financial Information..................................43
6.02
Inspection of Property.................................45
6.03
Covenant to Secure Obligations Equally.................45
6.04
Maintenance of Properties; Insurance...................45
6.05
Environmental and Safety Laws..........................46
6.06
Use of Proceeds........................................46
6.07
Maintenance of Ratings.................................46
ARTICLE VII.
NEGATIVE COVENANTS.....................................46
7.01
Financial Covenants....................................46
7.02
Liens..................................................46
7.03
Loans and Advances.....................................47
7.04
Merger and Sale of Assets..............................48
7.05
Priority Debt..........................................49
7.06
Sale of Discount of Receivables........................49
7.07
Sale-Leasebacks........................................49
7.08
Transactions Holders of Partnership or Other
Equity Interests.......................................49
7.09
Use of
Proceeds........................................50
7.10
Transfer of Assets to Subsidiaries.....................50
7.11
Sale of Stock and Debt of Subsidiaries.................50
7.12
Restricted Payments....................................50
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES.........................50
8.01
Events of Default......................................50
8.02
Remedies Upon Event of Default.........................53
8.03
Application of Funds...................................53
ARTICLE IX.
AGENT..................................................54
9.01
Appointment and Authority..............................54
9.02
Rights as a Lender.....................................54
9.03
Exculpatory Provisions.................................54
9.04
Reliance by Agent......................................55
9.05
Delegation of Duties...................................55
9.06
Resignation of Agent...................................55
9.07
Non-Reliance on Agent and Other Lenders................56
9.08
No Other
Duties, Etc...................................56
ARTICLE X.
MISCELLANEOUS..........................................56
10.01
Amendments, Etc........................................56
10.02
Notices; Effectiveness; Electronic Communication.......57
10.03
No Waiver; Cumulative Remedies.........................58
10.04
Expenses; Indemnity; Damage Waiver.....................59
10.05
Payments Set Aside.....................................60
10.06
Successors and Assigns.................................60
10.07
Treatment of Certain Information; Confidentiality......64
10.08
Right of Setoff........................................65
10.09
Interest Rate Limitation...............................65
10.10
Counterparts; Integration; Effectiveness...............65
10.11
Survival of Representations and Warranties.............65
10.12
Severability...........................................65
10.13
Replacement of Lenders.................................66
10.14
Governing Law; Jurisdiction; Etc.......................66
10.15
Waiver of Jury Trial...................................67
10.16
No Advisory or Fiduciary Responsibility................67
10.17
USA PATRIOT Act Notice.................................68
SCHEDULES
1.01A
Indebtedness to be Repaid at Closing
1.01B
Existing Letters of Credit
2.01
Commitments and Applicable Percentages
5.07
Conflicting Agreements
7.02
Existing Liens
10.02
Agent's Office; Certain Addresses for Notices
EXHIBITS
A
Committed Loan Notice
B
Swing Line Loan Notice
C
Note
D
Commitment Reallocation Notice
E
Assignment and Assumption
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of December
28,
---------
2006, among ALEXANDER & BALDWIN, INC., a Hawaii corporation
(the "Borrower"),
--------
each lender from time to time party hereto (collectively, the
"Lenders" and
-------
individually, a "Lender"), and FIRST HAWAIIAN BANK, as Agent, Swing
Line Lender
------
and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving
credit
facility, and the Lenders are willing to do so on the terms and
conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01
Defined Terms. As used
in this Agreement, the following terms
shall have the meanings set forth below:
"Administrative Questionnaire" means an Administrative
Questionnaire in
----------------------------
a form supplied by the Agent.
"Affiliate" means, without duplication, any Person directly or
---------
indirectly controlling, controlled by, or under direct or indirect
common
control with, the Borrower, except a Subsidiary. A Person shall be
deemed to
control another Person if such first Person possesses, directly or
indirectly,
the power to direct or cause the direction of the management and
policies of
such other Person, whether through the ownership of voting
securities, by
contract or otherwise.
"Agent" means First Hawaiian Bank in its capacity as
administrative
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agent under any of the Loan Documents, or any successor
administrative agent.
"Agent's Office" means the Agent's address and, as appropriate,
account
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as set forth on Schedule 10.02, or such other address or account as
the Agent
--------------
may from time to time notify to the Borrower and the Lenders in
writing.
"Aggregate Commitments" means the Commitments of all the Lenders.
The
---------------------
initial amount of the Aggregate Commitments in effect on the
Closing Date is
$225,000,000. The Aggregate Commitments may be increased or
decreased from time
to time as provided herein, including as a result of a Commitment
Reallocation.
"Aggregate Matson Commitments" means, as of any date of
determination,
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the "Aggregate Commitments" (as such term is defined in the Matson
Credit
Agreement) in effect on such date.
"Agreement" means this Credit Agreement.
---------
"Applicable Percentage" means with respect to any Lender at any
time,
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the percentage (carried out to the ninth decimal place) of the
Aggregate
Commitments represented by such Lender's Commitment at such time.
If the
commitment of each Lender to make Loans and the obligation of the
L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section
8.02 or if
------------
the Aggregate Commitments have expired, then the Applicable
Percentage of each
Lender shall be determined based on the Applicable Percentage of
such Lender
most recently in effect, giving effect to any subsequent
assignments. The
initial Applicable Percentage of each Lender is set forth opposite
the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption or
other
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documentation pursuant to which such Lender becomes a party hereto,
as
applicable.
"Applicable Rate" means with respect to the Facility Fee, the
---------------
Eurodollar Rate and the Letter of Credit Fee, from time to time,
the following
percentages per annum, based upon the Debt Rating as set forth
below:
Pricing Debt Ratings
Facility
Letter of
Level
S&P/Moody's
Fee
Eurodollar Rate
Credit Fee
1
A-/A3 or better
0.075%
0.225%
0.225%
2
BBB+/Baa1
0.100%
0.275%
0.275%
3
BBB/Baa2
0.125%
0.375%
0.375%
4
BBB-/Baa3 or worse 0.150%
0.475%
0.475%
(a) If the Borrower maintains more than one Debt Rating and
(i) the respective Debt Ratings differ by one level, then the
Pricing
Level for the higher of such Debt Ratings shall apply (with the
Debt
Rating for Pricing Level 1 being the highest and the Debt Rating
for
Pricing Level 4 being the lowest); and (ii) if there is a split in
Debt
Ratings of more than one level, then the Pricing Level that is
one
level lower than the Pricing Level of the higher Debt Rating
shall
apply; and (b) if the Borrower does not have any Debt Rating,
Pricing
Level 4 shall apply.
Each change in the Applicable Rate resulting from a publicly
announced change in
a Debt Rating shall be effective upon the public announcement
thereof and shall
apply throughout the period ending on the date immediately
preceding the
effective date of the next such change, if any.
"Approved Fund" means any Fund that is administered or managed by
(a) a
-------------
Lender, (b) an affiliate of a Lender or (c) an entity or an
affiliate of an
entity that administers or manages a Lender.
"Arranger" means First Hawaiian Bank, in its capacity as joint
lead
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arranger and co-book manager.
"Assignee Group" means two or more Eligible Assignees that are
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affiliates of one another or two or more Approved Funds managed by
the same
investment advisor.
"Assignment and Assumption" means an assignment and assumption
entered
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into by a Lender and an assignee (with the consent of any party
whose consent is
required by Section 10.06(b)), and accepted by the Agent, in
substantially the
----------------
form of Exhibit E or any other form approved by the Agent.
---------
"Audited Financial Statements" means the audited consolidated
balance
----------------------------
sheet of the Borrower and its Subsidiaries for the fiscal year
ended December
31, 2005, and the related consolidated statements of income or
operations,
shareholders' equity and cash flows for such fiscal year of the
Borrower and its
Subsidiaries, including the notes thereto.
"Authorized Officer" means any officer of the Borrower designated
as an
------------------
"Authorized Officer" for the purpose of this Agreement in a
certificate executed
by one of the Borrower's then existing Authorized Officers (as
previously
identified to the Agent). Any action taken under this Agreement on
behalf of the
Borrower by any individual who on or after the date of this
Agreement shall have
been an Authorized Officer of the Borrower and whom the Agent or
any of the
Lenders in good faith believes to be an Authorized Officer of the
Borrower at
the time of such action shall be binding on the Borrower even
though such
individual shall have ceased to be an Authorized Officer of the
Borrower, unless
the Borrower shall have provided the Agent with a certificate
executed by one of
the Borrower's then existing Authorized Officers (as previously
identified to
the Agent) indicating that such individual is no longer an
"Authorized Officer."
"Availability Period" means the period from and including the
Closing
-------------------
Date to the earliest of (a) the Maturity Date, (b) the date of
termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the
date of
------------
termination of the commitment of each Lender to make Loans and of
the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section
8.02.
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"Base Rate" means for any day a fluctuating rate per annum equal to
the
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higher of (a) the Federal Funds Rate for borrowings by national
banks as
determined by the Agent plus one-half of one percent (1/2%) or (b)
the lending
rate of interest per annum announced publicly by First Hawaiian
Bank from time
to time as its "Prime Interest Rate", which rate shall not
necessarily be the
best or the lowest rate charged by First Hawaiian Bank from time to
time. In the
event that any time or times the prime interest rate is
discontinued and
replaced by First Hawaiian Bank by a comparable rate (hereinafter
called the
"Comparable Rate"), then for purposes hereof, the Comparable Rate
shall be
substituted in place of the discontinued rate; provided, however
that if there
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is no replacement of the discontinued rate by a Comparable Rate,
then the
discontinued rate shall be replaced by the primary index rate from
time to time
established by First Hawaiian Bank for the guidance of its lending
officers in
pricing commercial loans.
"Base Rate Loan" means a Committed Loan that bears interest based
on
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the Base Rate.
"Borrower" has the meaning specified in the introductory
paragraph
--------
hereto.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing,
as
---------
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other
day
------------
on which commercial banks are authorized to close under the laws
of, or are in
fact closed in, Honolulu, Hawaii or the state where the Agent's
Office is
located and, if such day relates to any Eurodollar Loan, means any
such day on
which dealings in Dollar deposits are conducted by and between
banks in the
London interbank eurodollar market.
"Capitalized Lease Obligation" means, with respect to any Person,
any
----------------------------
rental obligation of such Person which, under GAAP, is or will be
required to be
capitalized on the books of such Person, taken at the amount
thereof accounted
for as indebtedness (net of interest expense) in accordance with
such
principles.
"Change in Law" means the occurrence, after the date of this
Agreement,
-------------
of any of the following: (a) the adoption or taking effect of any
law, rule,
regulation or treaty, (b) any change in any law, rule, regulation
or treaty or
in the administration, interpretation or application thereof by any
Governmental
Authority (including any change in any requirements to maintain
reserves with
respect to liabilities or assets consisting of or including
Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities")) or (c)
the making
or issuance of any request, guideline or directive (whether or not
having the
force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a)
-----------------
any "person" or "group" (as such terms are used in Sections
13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, but excluding any
employee
benefit plan of such person or its subsidiaries, and any person or
entity acting
in its capacity as trustee, agent or other fiduciary or
administrator of any
such plan) becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5
under the Securities Exchange Act of 1934, directly or indirectly,
of more than
50% of the equity securities of the Borrower entitled to vote for
members of the
board of directors of the Borrower on a fully-diluted basis; or (b)
during any
period of 24 consecutive months, a majority of the members of the
board of
directors of the Borrower cease to be composed of individuals who
were either
(i) nominated by the management of the Borrower or by persons who
were members
of that board of directors as of the Closing Date or members
elected by a
majority of such members or (ii) appointed by directors so
nominated.
"Closing Date" means December 28, 2006.
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"Code" means the Internal Revenue Code of 1986.
----
"Commitment" means, as to each Lender, its obligation to (a)
make
----------
Committed Loans to the Borrower pursuant to Section 2.01, (b)
purchase
------------
participations in L/C Obligations, and (c) purchase participations
in Swing Line
Loans, in an aggregate principal amount at any one time outstanding
not to
exceed the amount set forth opposite such Lender's name on Schedule
2.01 or in
-------------
the Assignment and Assumption or other documentation pursuant to
which such
Lender becomes a party hereto, as applicable, as such amount may be
adjusted
from time to time in accordance with this Agreement.
"Commitment Reallocation" has the meaning specified in Section
2.15.
-----------------------
------------
"Commitment Reallocation Notice" means a request by the Borrower
for a
------------------------------
Commitment Reallocation pursuant to Section 2.15 substantially in
the form of
------------
Exhibit D.
---------
"Committed Borrowing" means a borrowing consisting of
simultaneous
-------------------
Committed Loans of the same Type and, in the case of Eurodollar
Loans, having
the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
------------
"Committed Loan" has the meaning specified in Section 2.01.
--------------
"Committed Loan Notice" means a notice of (a) a Committed
Borrowing,
---------------------
(b) a conversion of Committed Loans from one Type to the other, or
(c) a
continuation of Eurodollar Loans, pursuant to Section 2.02(a),
which, if in
---------------
writing, shall be substantially in the form of Exhibit A.
---------
"Consolidated Interest Expense" means the sum of all amounts
that
-----------------------------
would, in accordance with GAAP, be deducted in computing
Consolidated Net Income
for the fiscal periods in question on account of interest,
including without
limitation, imputed interest in respect of Capitalized Lease
Obligations, fees
in respect of letters of credit and bankers' acceptance financing
and
amortization of debt discount and expense.
"Consolidated Net Income" means the consolidated gross revenues of
the
-----------------------
Borrower and Subsidiaries for the period in question, less all
operating and
non-operating expenses, including all charges of a proper character
(including
current and deferred taxes on income, provision for taxes on
unremitted foreign
earnings which are included in gross revenues, and current
additions to
reserves), but not including in gross revenues any (i) gains (net
of expenses
and taxes applicable thereto) in excess of losses resulting from
the sale,
conversion, exchange or other disposition of capital assets (i.e.,
assets other
than current assets) other than real property sold for cash, cash
equivalents or
other property or tangible assets by the Borrower or the Property
Subs in the
ordinary course of their Property Development Activities, (ii)
gains resulting
from the write-up of assets, (iii) equity in the unremitted
earnings of any
other Person (other than of Subsidiaries) or (iv) net income, gain
or loss
during such period from any change in accounting, from any
Discontinued
Operations or the disposition thereof, from any extraordinary
events or from any
prior period adjustments, all determined in accordance with
GAAP.
"Consolidated Net Income Before Taxes" means Consolidated Net
Income
------------------------------------
for the period in question plus the sum of all deferred and current
Federal,
state, local and foreign taxes that are deducted in accordance with
GAAP in
computing Consolidated Net Income for such period.
"Consolidated Shareholders' Equity" means, at any time of
determination
---------------------------------
thereof, for the Borrower and Subsidiaries determined in accordance
with GAAP,
the sum of (i) consolidated shareholders' equity, and (ii) any
consolidated
mezzanine equity (or other temporary or non-permanent equity)
resulting from the
application of Statement of Financial Accounting Standards No.
123R, and related
stock based compensation awards issued to management which are
puttable upon a
change of control; any determination of Consolidated Shareholders'
Equity shall
exclude all non-cash adjustments to Consolidated Shareholders'
Equity resulting
from the application of Statement of Financial Accounting Standards
No. 158
(Employers' Accounting for Defined Benefit Pension and Other
Postretirement
Benefit Plans), provided that for periods ending on or before
December 31, 2006,
such non-cash adjustments shall not exceed $50,000,000.
"Consolidated Total Assets" means, at any time of determination
-------------------------
thereof, the consolidated total assets of the Borrower and
Subsidiaries
determined in accordance with GAAP.
"Credit Extension" means each of the following: (a) a Borrowing
and
----------------
(b) an L/C Credit Extension.
"Debt" means, as to any Person at the time of determination
thereof
----
without duplication, (a) any indebtedness of such Person (i) for
borrowed money,
including commercial paper and revolving credit lines, (ii)
evidenced by bonds,
debentures or notes or otherwise representing extensions of credit,
whether or
not representing obligations for borrowed money or (iii) for the
payment of the
deferred purchase price of property or services, except trade
accounts payable
arising in the ordinary course of business, regardless of when such
liability or
other obligation is due and payable, (b) Capitalized Lease
Obligations of such
Person, (c) Guarantees, assumptions and endorsements by such Person
(other than
endorsements of negotiable instruments for collection in the
ordinary course of
business) of Debt of another Person of the types described in
clauses (a) and
(b) hereof, and (d) Debt of another Person of the types described
in clauses (a)
and (b) hereof that is secured by Liens on the property or other
assets of such
Person. "Debt" shall not include (i) a reimbursement obligation
incurred in
connection with a standby letter of credit issued in support of
trade payables
or as condition to receiving a governmental entitlement, a
performance bond or a
performance guaranty, in each case to the extent such reimbursement
obligation
is contingent or (ii) in the case of the Borrower, a Guarantee of
up to
$25,000,000 of revolving debt of Hawaii Sugar & Transportation
Cooperative.
"Debt to EBITDA Ratio" means, as at any time of determination
thereof,
--------------------
the ratio of (i) all Debt of the Borrower and Subsidiaries on a
consolidated
basis to (ii) EBITDA for the four consecutive fiscal quarter period
then most
recently ended.
"Debt Rating" means, as of any date of determination, the
non-credit
-----------
enhanced, senior unsecured long-term debt rating as determined by
S&P or Moody's
(collectively, the "Debt Ratings") of the Borrower.
------------
"Debtor Relief Laws" means the Bankruptcy Code of the United
States,
------------------
and all other liquidation, conservatorship, bankruptcy, assignment
for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency,
reorganization, or similar debtor relief laws of the United States
or other
applicable jurisdictions from time to time in effect and affecting
the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event
of
-------
Default or that, with the giving of any notice, the passage of
time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations
other
------------
than Letter of Credit Fees, an interest rate equal to (i) the Base
Rate plus
----
(ii) the Applicable Rate, if any, applicable to Base Rate Loans
plus (iii) 2%
----
per annum; provided, however, that with respect to a Eurodollar
Loan, the
-------- -------
Default Rate shall be an interest rate equal to the interest rate
(including any
Applicable Rate) otherwise applicable to such Loan plus 2% per
annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to
the Applicable
Rate plus 2% per annum.
----
"Defaulting Lender" means any Lender that (a) has failed to fund
any
-----------------
portion of the Committed Loans, participations in L/C Obligations
or
participations in Swing Line Loans required to be funded by it
hereunder within
one Business Day of the date required to be funded by it hereunder
unless such
failure has been cured, (b) has otherwise failed to pay over to the
Agent or any
other Lender any other amount required to be paid by it hereunder
within one
Business Day of the date when due, unless the subject of a good
faith dispute or
unless such failure has been cured, or (c) has been deemed
insolvent or become
the subject of a bankruptcy or insolvency proceeding.
"Discontinued Operations" shall have the meaning provided pursuant
to
-----------------------
GAAP, provided that any sale or condemnation of real estate which
is treated as
a discontinued operation pursuant to GAAP shall be treated as a
sale of a
continuing operation to the extent the net proceeds of such sale or
condemnation
have been reinvested in real estate within twelve months from the
date of sale
or condemnation.
"Dollar" and "$" mean lawful money of the United States.
------
-
"EBITDA" means, for any period, Consolidated Net Income Before
Taxes
------
for such period plus, to the extent deducted in the calculation
thereof,
Consolidated Interest Expense, depreciation and amortization.
"Eligible Assignee" means any Person that meets the requirements to
be
-----------------
an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to
such consents,
---------------------
---
----
if any, as may be required under Section 10.06(b)(iii)).
---------------------
"Environmental and Safety Laws" means all Federal, state and
local
-----------------------------
laws, regulations and ordinances, relating to the discharge,
handling,
disposition or treatment of Hazardous Materials and other
substances or the
protection of the environment or of employee health and safety,
including,
without limitation, CERCLA, the Hazardous Materials Transportation
Act
(49 U.S.C. Section 1801 et. seq.), the Resource Conservation and
Recovery Act
(42 U.S.C. Section
6901 et. seq.), the Federal Water Pollution Control Act (33
U.S.C. Section 1251 et. seq.), the Clean Air Act (42 U.S.C. Section
7401 et.
seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et.
seq.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 et. seq.)
and the
Emergency Planning and Community Right-To-Know Act (42 U.S.C.
Section 11001 et.
seq.).
"Environmental Liabilities and Costs" means as to any Person,
all
-----------------------------------
liabilities, obligations, responsibilities, remedial actions,
losses, damages,
punitive damages, consequential damages, treble damages,
contribution, cost
recovery, costs and expenses (including all fees, disbursements and
expenses of
counsel, expert and consulting fees, and costs of investigation and
feasibility
studies), fines, penalties, sanctions and interest incurred as a
result of any
claim or demand, by any Person, whether based in contract, tort,
implied or
express warranty, strict liability, criminal or civil statute,
permit, order or
agreement with any Federal, state or local governmental authority
or other
Person, arising from environmental, health or safety conditions, or
the release
or threatened release of a contaminant, pollutant or Hazardous
Material into the
environment, resulting from the operations of such Person or its
subsidiaries,
or breach of any Environmental and Safety Law or for which such
Person or its
subsidiaries is otherwise liable or responsible.
"ERISA" means the Employee Retirement Income Security Act of
1974.
-----
"ERISA Affiliate" means any corporation which is a member of the
same
---------------
controlled group of corporations as the Borrower within the meaning
of section
414(b) of the Code, or any trade or business which is under common
control with
the Borrower within the meaning of section 414(c) of the Code.
"Eurodollar Loan" means a Committed Loan that bears interest at a
rate
---------------
based on the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period with respect to
a
---------------
Eurodollar Loan, the rate per annum equal to the British Bankers
Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially
---------
available source providing quotations of BBA LIBOR as designated by
the Agent
from time to time) at approximately 11:00 a.m., London time, two
Business Days
prior to the commencement of such Interest Period, for Dollar
deposits (for
delivery on the first day of such Interest Period) with a term
equivalent to
such Interest Period. If such rate is not available at such time
for any reason,
then the "Eurodollar Rate" for such Interest Period shall be the
rate per annum
determined by the Agent to be the rate at which deposits in Dollars
for delivery
on the first day of such Interest Period in same day funds in the
approximate
amount of the Eurodollar Loan being made, continued or converted
and with a term
equivalent to such Interest Period would be offered to the Agent by
major banks
in the London interbank eurodollar market at approximately 11:00
a.m. (London
time) two Business Days prior to the commencement of such Interest
Period.
"Event of Default" has the meaning specified in Section 8.01.
----------------
------------
"Excluded Taxes" means, with respect to the Agent, any Lender, the
L/C
--------------
Issuer or any other recipient of any payment to be made by or on
account of any
obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its
overall net income (however denominated), and franchise taxes
imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political
subdivision
thereof) under the laws of which such recipient is organized or in
which its
principal office is located or, in the case of any Lender, in which
its
applicable Lending Office is located, (b) any branch profits taxes
imposed by
the United States or any similar tax imposed by any other
jurisdiction in which
the Borrower is located and (c) in the case of a Foreign Lender
(other than an
assignee pursuant to a request by the Borrower under Section
10.13), any
-------------
withholding tax that is imposed on amounts payable to such Foreign
Lender at the
time such Foreign Lender becomes a party hereto (or designates a
new Lending
Office) or is attributable to such Foreign Lender's failure or
inability (other
than as a result of a Change in Law) to comply with Section
3.01(e), except to
---------------
the extent that such Foreign Lender (or its assignor, if any) was
entitled, at
the time of designation of a new Lending Office (or assignment), to
receive
additional amounts from the Borrower with respect to such
withholding tax
pursuant to Section 3.01(a).
---------------
"Existing Indebtedness" means the obligations of the Borrower
---------------------
identified on Schedule 1.01A.
--------------
"Existing Letters of Credit" means those letters of credit set
forth on
--------------------------
Schedule 1.01B.
--------------
"Federal Funds Rate" means, for any day, the rate per annum equal
to
------------------
the weighted average of the rates on overnight Federal funds
transactions with
members of the Federal Reserve System arranged by Federal funds
brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day
next succeeding such day; provided that (a) if such day is not a
Business Day,
--------
the Federal Funds Rate for such day shall be such rate on such
transactions on
the next preceding Business Day as so published on the next
succeeding Business
Day, and (b) if no such rate is so published on such next
succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
(rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged
to First
Hawaiian Bank on such day on such transactions as determined by the
Agent.
"Fee Letter" means the administrative fee letter agreement,
dated
----------
October 3, 2006, among the Borrower, the Agent and the
Arranger.
"Foreign Lender" means any Lender that is organized under the laws
of a
--------------
jurisdiction other than that in which the Borrower is resident for
tax purposes.
For purposes of this definition, the United States, each State
thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of
the
---
United States.
"Fund" means any Person (other than a natural person) that is (or
will
----
be) engaged in making, purchasing, holding or otherwise investing
in commercial
loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" means generally accepted accounting principles in the
United
----
States set forth in the opinions and pronouncements of the
Accounting Principles
Board and the American Institute of Certified Public Accountants
and statements
and pronouncements of the Financial Accounting Standards Board or
such other
principles as may be approved by a significant segment of the
accounting
profession in the United States, that are applicable to the
circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States
or
----------------------
any other nation, or of any political subdivision thereof, whether
state or
local, and any agency, authority, instrumentality, regulatory body,
court,
central bank or other entity exercising executive, legislative,
judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to
government (including any supra-national bodies such as the
European Union or
the European Central Bank).
"Guarantee" means, without duplication, any obligation, contingent
or
---------
otherwise, of any Person guaranteeing or having the economic effect
of
guaranteeing any Debt or other obligation of any other Person (the
primary
obligor) in any manner, directly or indirectly, and including any
obligation:
(a) to make any loan, advance or capital contribution, or for the
purchase of
any property from, any Person, in each case for the purpose of
enabling such
Person to maintain working capital, net worth or any other balance
sheet
condition or to pay debts, dividends or expenses except for
advances, deposits
and initial payments made in the usual and ordinary course of
business for the
purchase or acquisition of property or services; (b) to purchase
materials,
supplies or other property or services if such obligation requires
that payment
for such materials, supplies or other property or services be made
regardless of
whether or not delivery of such materials, supplies or other
property or
services is ever made or tendered; (c) to rent or lease (as lessee)
any real or
personal property (except for leases in effect on December 31,
2005) if such
obligation is absolute and unconditional under conditions not
customarily found
in commercial leases then in general use; or (d) of any partnership
or joint
venture in which such Person is a general partner or joint venturer
if such
obligation is not expressly non-recourse to such Person; but
excluding a
completion guarantee issued in connection with a real estate
development project
to the extent contingent and not constituting a direct or indirect
obligation to
re-pay Debt.
"Hazardous Materials" means (a) any material or substance defined
as or
-------------------
included in the definition of "hazardous substances," "hazardous
wastes,"
"hazardous materials," "toxic substances" or any other formulations
intended to
define, list or classify substances by reason of their deleterious
properties,
(b) any oil, petroleum or petroleum derived substance, (c) any
flammable
substances or explosives, (d) any radioactive materials, (e)
asbestos in any
form, (f) electrical equipment that contains any oil or dielectric
fluid
containing levels of polychlorinated biphenyls in excess of fifty
parts per
million, (g) pesticides or (h) any other chemical, material or
substance,
exposure to which is prohibited, limited or regulated by any
governmental agency
or authority or which may or could pose a hazard to the health and
safety of
persons in the vicinity thereof.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indemnitees" has the meaning specified in Section 10.04(b).
-----------
----------------
"Information" has the meaning specified in Section 10.07.
-----------
-------------
"Interest Payment Date" means, (a) as to any Eurodollar Loan, the
last
---------------------
day of each Interest Period applicable to such Loan and the
Maturity Date;
provided, however, that if any Interest Period for a Eurodollar
Loan exceeds
-------- -------
three months, the respective dates that fall every three months
after the
beginning of such Interest Period shall also be Interest Payment
Dates; (b) as
to any Base Rate Loan, the first Business Day after the end of each
March, June,
September and December and the Maturity Date; and (c) as to any
Swing Line Loan,
the date(s) agreed by the Swing Line Lender and the Borrower after
the giving of
a Swing Line Notice by the Borrower and before the making of a
Swing Line Loan
by the Swing Line Lender.
"Interest Period" means, as to each Eurodollar Loan, the period
---------------
commencing on the date such Eurodollar Loan is disbursed or
converted to or
continued as a Eurodollar Loan and ending on the date two weeks or
one, two,
three or six months thereafter, as selected by the Borrower in its
Committed
Loan Notice; provided that:
--------
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding
Business
Day unless such Business Day falls in another calendar month, in
which
case such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically
corresponding day in the calendar month at the end of such
Interest
Period)
shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"ISP" means, with respect to any Letter of Credit, the
"International
---
Standby Practices 1998" published by the International Chamber of
Commerce
Publication 590 (or such later version thereof as may be in effect
at the time
of issuance).
"Issuer Documents" means with respect to any Letter of Credit,
the
----------------
Letter of Credit Application, and any other document, agreement and
instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary)
or in favor
the L/C Issuer and relating to such Letter of Credit.
"L/C Credit Extension" means, with respect to any Letter of Credit,
the
--------------------
issuance thereof or extension of the expiry date thereof, or the
increase of the
amount thereof.
"L/C Issuer" means, as the context requires, (a) First Hawaiian
Bank in
----------
its capacity as issuer of Letters of Credit hereunder (including
certain
Existing Letters of Credit), (b) solely with respect to (i) certain
Existing
Letters of Credit issued by Bank of America, N.A. and (ii) to the
extent that
First Hawaiian Bank is unable to issue such Letters of Credit
hereunder, Bank of
America, N.A., as issuer of such Letters of Credit, and (c) any
successor issuer
of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the
aggregate
---------------
amount available to be drawn under all outstanding Letters of
Credit plus the
----
aggregate of all Unreimbursed Amounts. For purposes of computing
the amount
available to be drawn under any Letter of Credit, the amount of
such Letter of
Credit shall be determined in accordance with Section 1.06. For all
purposes of
------------
this Agreement, if on any date of determination a Letter of Credit
has expired
by its terms but any amount may still be drawn thereunder by reason
of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be
"outstanding" in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph
hereto
------
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of
such
--------------
Lender described as such in such Lender's Administrative
Questionnaire, or such
other office or offices as a Lender may from time to time notify
the Borrower
and the Agent.
"Letter of Credit" means any letter of credit issued hereunder
and
----------------
shall include the Existing Letters of Credit. A Letter of Credit
may be a
commercial letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement
for
----------------------------
the issuance or amendment of a Letter of Credit in the form from
time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven
days
--------------------------------
prior to the Maturity Date then in effect (or, if such day is not a
Business
Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section
2.03(i).
--------------------
---------------
"Letter of Credit Sublimit" means an amount equal to the lesser of
(a)
-------------------------
$100,000,000 and (b) the Aggregate Commitments. The Letter of
Credit Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Lien" means any mortgage, deed of trust, pledge, security
interest,
----
encumbrance, lien or charge of any kind (including any agreement to
give any of
the foregoing, any purchase money mortgage, conditional sale or
other title
retention agreement, any lease in the nature thereof, and the
filing of or
agreement to give any financing statement (exclusive of filings
for
precautionary purposes only) under the Uniform Commercial Code of
any
jurisdiction).
"Loan" means an extension of credit by a Lender to the Borrower
under
----
Article II in the form of a Committed Loan or a Swing Line
Loan.
----------
"Loan Documents" means this Agreement, each Note, each Issuer
Document,
--------------
and the Fee Letter.
"Material Adverse Effect" means (a) a material adverse change in,
or a
-----------------------
material adverse effect upon, on the business, condition (financial
or
otherwise) or operations of the Borrower and its Subsidiaries taken
as a whole;
(b) a material impairment of the ability of the Borrower to perform
its
obligations under any Loan Document; or (c) a material adverse
effect on the
material rights and remedies of the Lenders, which material adverse
effect was
not caused by any Lender.
"Matson" means Matson Navigation Company, Inc., a wholly owned
------
subsidiary of the Borrower.
"Matson Credit Agreement" means that certain credit agreement dated
as
-----------------------
of the date hereof among Matson Navigation Company, Inc., as
borrower, the
lenders party thereto and First Hawaiian Bank, as administrative
agent.
"Matson Subsidiary" means any Subsidiary a majority of the Voting
Stock
-----------------
of which is owned by Matson, either directly or through Matson
Subsidiaries.
"Maturity Date" means December 28, 2011. If such date is not a
-------------
Business Day, the Maturity Date shall be the next preceding
Business Day.
"Moody's" means Moody's Investors Service, Inc. and any
successor
-------
thereto.
"Multiemployer Plan" means any Plan which is a "multiemployer plan"
(as
------------------
such term is defined in section 4001(a)(3) of ERISA).
"Net Operating Income from Unencumbered Investment Properties"
means,
------------------------------------------------------------
for any period, the consolidated revenues attributable to
Unencumbered
Investment Properties less operating expenses, real property taxes,
taxes on
gross revenue, common area maintenance expenses, ground and other
rents, other
rental expenses, and charges for property management related
thereto, but in no
event shall take into account tenant deposits, refunds of tenant
deposits,
tenant improvements paid for by the Borrower or Subsidiaries,
reimbursement by
tenants to the Borrower or Subsidiaries for tenant improvements
paid for by the
Borrower or Subsidiaries, allowances for bad debts, gains or losses
from the
sales of leased property, depreciation and amortization, overhead
allocations
that are not directly associated with the property, or state and
federal income
taxes.
"non-Matson Subsidiaries" means Subsidiaries of the Borrower other
than
-----------------------
Matson, any successor thereof and Matson Subsidiaries.
"Note" means a promissory note made by the Borrower in favor of
a
----
Lender evidencing Loans made by such Lender, substantially in the
form of
Exhibit C.
---------
"Obligations" means all advances to, and debts, liabilities,
-----------
obligations, covenants and duties of, the Borrower arising under
any Loan
Document or otherwise with respect to any Loan or Letter of Credit,
whether
direct or indirect (including those acquired by assumption),
absolute or
contingent, due or to become due, now existing or hereafter arising
under any
Loan Document and including interest and fees that accrue after the
commencement
by or against the Borrower or any Subsidiary or Affiliate thereof
of any
proceeding under any Debtor Relief Laws naming such Person as the
debtor in such
proceeding, regardless of whether such interest and fees are
allowed claims in
such proceeding.
"Officer's Certificate" means a certificate signed in the name of
the
---------------------
Borrower by an Authorized Officer of the Borrower.
"Outstanding Amount" means (i) with respect to Committed Loans
and
------------------
Swing Line Loans on any date, the aggregate outstanding principal
amount thereof
after giving effect to any borrowings and prepayments or repayments
of Committed
Loans and Swing Line Loans, as the case may be, occurring on such
date; and (ii)
with respect to any L/C Obligations on any date, the amount of such
L/C
Obligations on such date after giving effect to any L/C Credit
Extension
occurring on such date and any other changes in the aggregate
amount of the L/C
Obligations as of such date, including as a result of any
reimbursements by the
Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
-----------
----------------
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Permitted Assets" means (a) where any Property Sub or any assets
of a
----------------
Property Sub or of the Borrower (other than capital stock of Matson
or any
successor thereof) have been sold or otherwise transferred, assets,
including
real estate, to be used by the Borrower or any Property Sub in
conducting
Property Development Activities, the Property Management Business
or the food
products business and (b) in all other instances, assets, including
real estate,
to be used in conducting Property Development Activities, the
Property
Management Business, the food products business or the ocean
transportation
business.
"Permitted Debt" means (a) any unsecured Debt of the Borrower or
a
--------------
Subsidiary (exclusive of Debt owed to the Borrower or a Subsidiary)
as selected
by the Borrower, so long as the aggregate amount of all proceeds
from sales or
other dispositions which are made after December 31, 2005 pursuant
to clauses
(d), (e) or (f) of Section 7.04 and that are applied to the
prepayment such
------------
unsecured debt pursuant to this clause (a), do not exceed
$150,000,000 and (b)
after the $150,000,000 basket in clause (a) has been fully
utilized, all
unsecured Debt of the Borrower and Subsidiaries (exclusive of any
Debt owed to
the Borrower or a Subsidiary thereof) on a pro rata basis.
"Person" means any natural person, corporation, limited
liability
------
company, trust, joint venture, association, company, partnership,
Governmental
Authority or other entity.
"Plan" means any "employee pension benefit plan" (as such term
is
----
defined in section 3 of ERISA) which is or has been established or
maintained,
or to which contributions are or have been made, by the Borrower or
any ERISA
Affiliate.
"Priority Debt" means, at any time of determination and without
-------------
duplication, the sum of (a) Debt secured by Liens incurred pursuant
to Section
-------
7.02(f), plus (b) Debt of the Borrower or any non-Matson Subsidiary
owed to
------- ----
Matson, any successor thereof or a Matson Subsidiary (other than
for cash
management purposes in accordance with the Borrower's standard cash
management
policies) plus (c) Debt of Subsidiaries (other than (i) Guarantees
of Debt of
the Borrower so long as each such Subsidiary has guaranteed the
Obligations,
(ii) Guarantees by Matson and Matson Subsidiaries of Debt of
Matson, Matson
Subsidiaries and Third Parties and (iii) Debt of a non-Matson
Subsidiary to
Matson or a Matson Subsidiary that was incurred for cash management
purposes in
accordance with the Borrower's standard cash management policies
and (iv) Debt
of Matson and Matson Subsidiaries (A) of the type specified in
Section 7.02(c)
---------------
or (B) that is unsecured and is not (1) guaranteed by the Borrower
or any
non-Matson Subsidiary or (2) a Guarantee by Matson, any successor
or any Matson
Subsidiary of Debt of the Borrower or any non-Matson
Subsidiary).
"Priority Debt Limit" means, at any time of determination, the sum
of
-------------------
(i) $155,000,000 and (ii) $2,500,000 multiplied by the number of
complete fiscal
quarters ended subsequent to June 30, 2006.
"Property Development Activities" means land acquisition and
-------------------------------
development activities, the principal objective of which is to
acquire and
develop real property for sale or other disposition.
"Property Management Business" means the managing, leasing, selling
and
----------------------------
purchasing of real property.
"Property Subs" means non-Matson Subsidiaries that exist on the
date
-------------
hereof or that are subsequently formed or acquired and, in each
case, whose
principal business activities are to engage in Property Development
Activities.
"Register" has the meaning specified in Section 10.06(c).
--------
----------------
"Related Parties" means, with respect to any Person, such
Person's
---------------
affiliates and the partners, directors, officers, employees, agents
and advisors
of such Person and of such Person's affiliates.
"Request for Credit Extension" means (a) with respect to a
Borrowing,
----------------------------
conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application,
and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination,
Lenders
----------------
having more than 50% of the Aggregate Commitments or, if the
commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make
L/C Credit
Extensions have been terminated pursuant to Section 8.02, Lenders
holding in the
------------
aggregate more than 50% of the Total Outstandings (with the
aggregate amount of
each Lender's risk participation and funded participation in L/C
Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of
this
definition); provided that the Commitment of, and the portion of
the Total
--------
Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means each of the treasurer, the chief
financial
-------------------
officer and chief legal officer of the Borrower and any other
officer of the
Borrower whose responsibilities include monitoring the Borrower's
compliance
with the provisions of this Agreement. Any document delivered
hereunder that is
signed by a Responsible Officer of the Borrower shall be
conclusively presumed
to have been authorized by all necessary corporate, partnership
and/or other
action on the part of the Borrower and such Responsible Officer
shall be
conclusively presumed to have acted on behalf of the Borrower.
"Restricted Payments" has the meaning specified in Section
7.12.
-------------------
------------
"S&P" means Standard & Poor's Ratings Services, a division
of The
---
McGraw-Hill Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any
Governmental
---
Authority succeeding to any of its principal functions.
"Significant Subsidiary" means any direct or indirect Subsidiary of
the
----------------------
Borrower, the net worth of which is, on the date of determination,
5% or more of
Consolidated Shareholders' Equity.
"Subsidiary" means, as to any Person, any company, whether
operating as
----------
a corporation, joint venture, partnership, limited liability
company or other
entity, which is consolidated with such Person in accordance with
GAAP. Unless
otherwise specified, all references herein to a "Subsidiary" or
to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan
pursuant
--------------------
to Section 2.04.
------------
"Swing Line Lender" means First Hawaiian Bank in its capacity
as
-----------------
provider of Swing Line Loans, or any successor swing line lender
hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
---------------
---------------
"Swing Line Loan Notice" means a notice of a Swing Line
Borrowing
----------------------
pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the
---------------
form of Exhibit B.
---------
"Swing Line Sublimit" means an amount equal to the lesser of
(a)
-------------------
$30,000,000 and (b) the Aggregate Commitments. The Swing Line
Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Taxes" means all present or future taxes, levies, imposts,
duties,
-----
deductions, withholdings, assessments, fees or other charges
imposed by any
Governmental Authority, including any interest, additions to tax or
penalties
applicable thereto.
"Third Party" means
any Person other than the Borrower and its
-----------
Subsidiaries.
"Total Investment Property Value" means, as of any date of
-------------------------------
determination, the aggregate book value of all developed real
estate owned in
fee by the Borrower and non-Matson Subsidiaries, in each case as of
the date of
acquisition or completion of construction thereof.
"Total Outstandings" means the aggregate Outstanding Amount of
all
------------------
Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a
Base
----
Rate Loan or a Eurodollar Loan.
"Undeveloped Land" means (a) land owned in fee by the Borrower or
any
----------------
Subsidiary (exclusive of Matson and Matson Subsidiaries) as of
December 31, 2005
which at the time of determination has not been developed for
commercial or
residential purposes, (b) land acquired by the Borrower or any
Subsidiary
(exclusive of Matson and Matson Subsidiaries) subsequent to
December 31, 2005
pursuant to a Code section 1031 like-kind exchange (in exchange for
land
described in clause (a) or (b) of this definition) which at the
time of
determination has not been developed for commercial or residential
purposes, or
(c) capital stock or other equity interests of a Subsidiary which
owns as its
principal asset, directly or indirectly, Undeveloped Land described
in clause
(a) or (b) of this definition.
"Unencumbered Investment Properties" means developed real estate
owned
----------------------------------
in fee by the Borrower and non-Matson Subsidiaries which is not
subject to a
mortgage or any other Lien, other than Liens described in clauses
(a) or (b) of
Section 7.02.
------------
"Unencumbered Investment Property Value" means, as of any date
of
--------------------------------------
determination, the aggregate book value of all Unencumbered
Investment
Properties, in each case as of the date of acquisition or
completion of
construction thereof.
"United States" and "U.S." mean the United States of America.
-------------
----
"Unreimbursed Amount" has the meaning specified in Section
2.03(c)(i).
-------------------
------------------
"Voting Stock" means any shares of stock (or comparable equity
------------
securities) whose holders are entitled under ordinary circumstances
to vote for
the election of directors (or comparable persons), irrespective of
whether at
the time stock (or comparable equity securities) of any other class
or classes
shall have or might have voting power by reason of the happening of
any
contingency.
1.02
Other
Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified
herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the
context
may require, any pronoun shall include the corresponding
masculine,
feminine and neuter forms. The words "include," "includes" and
-------
--------
"including" shall be deemed to be followed by the phrase
"without
---------
limitation." The word "will" shall be construed to have the
same
----
meaning and effect as the word "shall." Unless the context
requires
-----
otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any articles of
incorporation,
bylaws or similar organizational documents) shall be construed
as
referring to such agreement, instrument or other document as from
time
to time amended, supplemented or otherwise modified (subject to
any
restrictions on such amendments, supplements or modifications set
forth
herein or in any other Loan Document), (ii) any reference herein to
any
Person shall be construed to include such Person's successors
and
assigns, (iii) the words "herein," "hereof" and "hereunder," and
words
------
------
---------
of similar import when used in any Loan Document, shall be
construed to
refer to such Loan Document in its entirety and not to any
particular
provision thereof, (iv) all references in a Loan Document to
Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the
Loan
Document in which such references appear, (v) any reference to any
law
shall include all statutory and regulatory provisions
consolidating,
amending, replacing or interpreting such law and any reference to
any
law or regulation shall, unless otherwise specified, refer to such
law
or regulation as amended, modified or supplemented from time to
time,
and (vi) the words "asset" and "property" shall be construed to
have
-----
--------
the same meaning and
effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities,
accounts
and contract rights.
(b) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
--------
including;" the words "to" and "until" each mean "to but
excluding;"
---------
--
-----
----------------
and the word "through" means "to and including."
-------
----------------
(c) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect
the
interpretation of this Agreement or any other Loan Document.
(d) All covenants hereunder shall be given independent effect
so that if a particular action or condition is prohibited by any
one of
such covenants, the fact that it would be permitted by an exception
to,
or otherwise be in compliance within the limitations of,
another
covenant shall not (i) avoid the occurrence of a Default if such
action
is taken or such condition exists or (ii) in any way prejudice
an
attempt by the Agent to prohibit, through equitable action or
otherwise
the taking of any action by the Borrower or any Subsidiary that
would
result in a Default. For the avoidance of doubt, if a particular
action
or condition is expressly permitted by an exception to a covenant
and
is not expressly prohibited by another provision in the same
covenant,
the taking of such action or the existence of such condition shall
not
result in a Default under such covenant.
1.03
Accounting Terms. (a) Generally. All accounting terms not
---------
specifically or completely defined herein shall be construed in
conformity with,
and all financial data (including financial ratios and other
financial
calculations) required to be submitted pursuant to this Agreement
shall be
prepared in conformity with, GAAP applied on a consistent basis, as
in effect
from time to time, except as otherwise specifically prescribed
herein.
------
(b) Changes in GAAP. If at any time any change in GAAP would affect
the
---------------
computation of any financial ratio or requirement set forth in any
Loan
Document, the Agent, the Lenders and the Borrower shall negotiate
in good faith
to amend such ratio or requirement to preserve the original intent
thereof in
light of such change in GAAP (subject to the approval of the
Required Lenders);
provided that, until so amended, such ratio or requirement shall
continue to be
-------- ----
computed in accordance with GAAP prior to such change therein.
1.04
Rounding. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by
dividing the
appropriate component by the other component, carrying the result
to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.05
Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Hawaii time (daylight
or standard,
as applicable).
1.06
Letter of Credit Amounts. Unless otherwise specified herein,
the amount of an outstanding Letter of Credit at any time shall be
deemed to be
the stated amount of such Letter of Credit in effect at such time;
provided,
--------
however, that with respect to any Letter of Credit that, by its
terms or the
-------
terms of any Issuer Document related thereto, provides for one or
more automatic
increases in the stated amount thereof without the consent of the
L/C Issuer,
the amount of such Letter of Credit shall be deemed to be the
maximum stated
amount of such Letter of Credit after giving effect to all such
increases,
whether or not such maximum stated amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
Committed Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan,
a
"Committed Loan") to the Borrower from time to time, on any
Business Day during
--------------
the Availability Period, in an aggregate amount not to exceed at
any time
outstanding the amount of such Lender's Commitment; provided,
however, that
-------- -------
after giving effect to any Committed Borrowing, (i) the Total
Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Applicable
Percentage
----
of the Outstanding Amount of all L/C Obligations, plus such
Lender's Applicable
----
Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed
the amount of such Lender's Commitment. Subject to the terms and
conditions
hereof, the Borrower may borrow Committed Loans under this Section
2.01, repay
------------
or prepay such Committed Loans, reborrow such Committed Loans and
borrow other
Committed Loans under this Section 2.01. Committed Loans may be
Base Rate Loans
------------
or Eurodollar Loans, as further provided herein.
2.02
Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans
from
one Type to the other, and each continuation of Eurodollar Loans
shall be made
upon the Borrower's irrevocable notice to the Agent, which may be
given by
telephone. Each such notice must be received by the Agent not later
than 11:00
a.m. (i) four Business Days prior to the requested date of any
Borrowing of
Eurodollar Loans and (ii) three Business Days prior to the
requested date of any
Borrowing of Base Rate Loans, of any conversion to or continuation
of Eurodollar
Loans or of any conversion of Eurodollar Loans to Base Rate Loans.
Each
telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be
---------------
confirmed promptly (and in any event within one (1) Business Day)
by delivery to
the Agent of a written Committed Loan Notice, appropriately
completed and signed
by an Authorized Officer of the Borrower. Each Borrowing of,
conversion to or
continuation of Eurodollar Loans shall be in a principal amount of
$5,000,000 or
a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections
--------
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate
Loans shall be
------- -------
in a principal amount of $500,000 or a whole multiple of $100,000
in excess
thereof. Each Committed Loan Notice (whether telephonic or written)
shall
specify (i) whether the Borrower is requesting a Committed
Borrowing, a
conversion of Committed Loans from one Type to the other, or a
continuation of
Eurodollar Loans, (ii) the requested date of the Borrowing,
conversion or
continuation, as the case may be (which shall be a Business Day),
(iii) the
principal amount of Committed Loans to be borrowed, converted or
continued, (iv)
the Type of Committed Loans to be borrowed or to which existing
Committed Loans
are to be converted, and (v) if applicable, the duration of the
Interest Period
with respect thereto. If the Borrower fails to specify a Type of
Committed Loan
in a Committed Loan Notice or if the Borrower fails to give a
timely notice
requesting a conversion or continuation of a Eurodollar Loan, then
the
applicable Committed Loan shall be made as, or converted to, Base
Rate Loans,
unless such Committed Loan was a Eurodollar Loan, in which case
such Committed
Loan shall be continued as a Eurodollar Loan with an Interest
Period of one
month. Any such automatic conversion to a Base Rate Loan and any
such
continuation of a Eurodollar Loan, in either case, shall be
effective as of the
last day of the Interest Period then in effect with respect to the
applicable
Eurodollar Loans. If the Borrower requests a Borrowing of,
conversion to, or
continuation of Eurodollar Loans in any such Committed Loan Notice,
but the
Borrower fails to specify an Interest Period for such Committed
Loan or
continuation of a Eurodollar Loan, it will be deemed to have
specified an
Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Agent
shall
promptly notify each Lender of the amount of its Applicable
Percentage of the
applicable Committed Loans, and if no timely notice of a conversion
or
continuation is provided by the Borrower, the Agent shall notify
each Lender of
the details of any automatic conversion to Base Rate Loans or
continuation of
Eurodollar Loans described in the preceding subsection. In the case
of a
Committed Borrowing, each Lender shall make the amount of its
Committed Loan
available to the Agent in immediately available funds at the
Agent's Office not
later than 10:00 a.m. on the Business Day specified in the
applicable Committed
Loan Notice. Upon satisfaction of the applicable conditions set
forth in Section
-------
4.02 (and, if such Borrowing is the initial Credit Extension,
Section 4.01), the
----
------------
Agent shall make all funds so received available to the Borrower in
like funds
as received by the Agent either by (i) crediting the account of the
Borrower on
the books of First Hawaiian Bank with the amount of such funds or
(ii) wire
transfer of such funds, in each case in accordance with
instructions provided to
(and reasonably acceptable to) the Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Loan may
be
continued or converted only on the last day of an Interest Period
for such
Eurodollar Loan. During the existence of a Default, no Loans may be
requested
as, converted to or continued as Eurodollar Loans without the
consent of the
Required Lenders.
(d) The Agent shall promptly notify the Borrower and the Lenders of
the
interest rate applicable to any Interest Period for Eurodollar
Loans upon
determination of such interest rate. At any time that Base Rate
Loans are
outstanding, the Agent shall notify the Borrower and the Lenders of
any change
in First Hawaiian Bank's prime rate used in determining the Base
Rate promptly
following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of
Committed Loans from one Type to the other, and all continuations
of Committed
Loans as the same Type, there shall not be more than ten Interest
Periods in
effect at any single time with respect to Eurodollar Loans.
2.03
Letters of Credit.
(a) The Letter of Credit Commitment.
-------------------------------
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the
Lenders
set forth in this Section 2.03, (1) from time to time on any
Business
------------
Day during the period from the Closing Date until the Letter of
Credit
Expiration
Date, to issue Letters of Credit for the account of the
Borrower or any of its Subsidiaries, and to amend or extend Letters
of
Credit previously issued by it, in accordance with subsection
(b)
below, and (2) to honor drawings under the Letters of Credit; and
(B)
the Lenders severally agree to participate in Letters of Credit
issued
for the account of the Borrower or its Subsidiaries and any
drawings
thereunder; provided that after giving effect to any L/C Credit
--------
Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y)
the
aggregate Outstanding Amount of the Committed Loans of any Lender,
plus
----
such Lender's Applicable Percentage of the Outstanding Amount of
all
L/C Obligations, plus such Lender's Applicable Percentage of
the
----
Outstanding Amount of all Swing Line Loans shall not exceed
such
Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit.
Each
request by the Borrower for the issuance or amendment of a Letter
of
Credit shall be deemed to be a representation by the Borrower that
the
L/C Credit Extension so requested complies with the conditions
set
forth in the proviso to the preceding sentence. Subject to the
terms
and conditions hereof, the Borrower's ability to obtain Letters
of
Credit shall be fully revolving. All Existing Letters of Credit
shall
be deemed to have been issued pursuant hereto, and from and after
the
Closing Date shall be subject to and governed by the terms and
conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date
--------------------
of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to
issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of Credit,
or any law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
letters of credit generally;
(C) except as otherwise agreed by the Agent and the
L/C Issuer, such Letter of Credit is in an initial stated
amount less than $100,000, in the case of a commercial Letter
of Credit, or $100,000, in the case of a standby Letter of
Credit;
(D) such Letter of Credit is to be denominated in a
currency other than Dollars; or
(E) a
default by any Lender of its obligations to
fund under Section 2.03(c) exists or any Lender is at such
---------------
time a Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower or
such Lender to eliminate the L/C Issuer's risk with respect to
such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such
Letter
of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at
such
time to issue such Letter of Credit in its amended form under the
terms
hereof, or (B) the beneficiary of such Letter of Credit does not
accept
the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits
and immunities (A) provided to the Agent in Article IX with respect
to
----------
any acts taken or omissions suffered by the L/C Issuer in
connection
with Letters of Credit issued by it or proposed to be issued by it
and
Issuer Documents pertaining to such Letters of Credit as fully as
if
the term "Agent" as used in Article IX included the L/C Issuer
with
----------
respect to such acts or omissions, and (B) as additionally
provided
herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
-----------------------------------------------------------
Auto-Extension Letters of Credit.
--------------------------------
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the
L/C
Issuer (with a copy to the Agent) in the form of a Letter of
Credit
Application, appropriately completed and signed by an
Authorized
Officer of the Borrower. Such Letter of Credit Application must
be
received by the L/C Issuer and the Agent not later than 11:00 a.m.
at
least three Business Days (or such later date and time as the Agent
and
the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of
amendment,
as the case may be. In the case of a request for an initial
issuance of
a Letter of Credit, such Letter of Credit Application shall specify
in
form and detail satisfactory to the L/C Issuer: (A) the
proposed
issuance date of the requested Letter of Credit (which shall be
a
Business Day); (B) the stated amount thereof; (C) the expiry
date
thereof; (D) the name and address of the beneficiary thereof; (E)
the
documents to be presented by such beneficiary in case of any
drawing
thereunder; (F) the full text of any certificate to be presented
by
such beneficiary in case of any drawing thereunder; and (G) such
other
matters as the L/C Issuer may reasonably require. In the case of
a
request for an amendment of any outstanding Letter of Credit,
such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended;
(B) the proposed date of amendment thereof (which shall be a
Business
Day); (C) the nature of the proposed amendment; and (D) such
other
matters as the L/C Issuer may reasonably require. Additionally,
the
Borrower shall furnish to the L/C Issuer and the Agent such
other
documents and information pertaining to such requested Letter of
Credit
issuance or amendment, including any Issuer Documents, as the
L/C
Issuer or the Agent may reasonably require.
(ii)
Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Agent (by
telephone
or in writing) that the Agent has received a copy of such Letter
of
Credit Application from the Borrower and, if not, the L/C Issuer
will
provide the Agent with a copy thereof. Unless the L/C Issuer
has
received written notice from any Lender, the Agent or the Borrower,
at
least one Business Day prior to the requested date of issuance
or
amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be
----------
satisfied, then, subject to the terms and conditions hereof, the
L/C
Issuer shall, on the requested date, issue a Letter of Credit for
the
account of the Borrower or the applicable Subsidiary or enter into
the
applicable amendment, as the case may be, in each case in
accordance
with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each
Lender
shall be deemed to, and hereby irrevocably and unconditionally
agrees
to, purchase from the L/C Issuer a risk participation in such
Letter of
Credit in an amount equal to the product of such Lender's
Applicable
Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and
absolute
discretion, agree to issue a Letter of Credit that has
automatic
extension provisions (each, an "Auto-Extension Letter of
Credit");
-------------------------------
provided that any such Auto-Extension Letter of Credit must permit
the
L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of
such
Letter of Credit) by giving prior notice to the beneficiary thereof
not
later than a day (the "Non-Extension Notice Date") in each such
-------------------------
twelve-month period to be agreed upon at the time such Letter of
Credit
is issued. Unless otherwise directed by the L/C Issuer, the
Borrower
shall not be required to make a specific request to the L/C Issuer
for
any such extension. Once an Auto-Extension Letter of Credit has
been
issued, the Lenders shall be deemed to have authorized (but may
not
require) the L/C Issuer to permit the extension of such Letter
of
Credit at any time to an expiry date not later than the Letter
of
Credit Expiration Date; provided, however, that the L/C Issuer
shall
-------- -------
not permit any such extension if (A) the L/C Issuer has determined
that
it would not be permitted, or would have no obligation, at such
time to
issue such Letter of Credit in its revised form (as extended) under
the
terms hereof (by reason of the provisions of clause (ii) or (iii)
of
Section 2.03(a) or otherwise), or (B) it has received notice (which
may
---------------
be by telephone or in writing) on or before the day that is
five
Business Days before the Non-Extension Notice Date (1) from the
Agent
that the Required Lenders have elected not to permit such extension
or
(2) from the Agent, any Lender or the Borrower that one or more of
the
applicable conditions specified in Section 4.02 is not then
satisfied,
------------
and in each such case directing the L/C Issuer not to permit
such
extension.
(iv) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and
absolute
discretion, agree to issue a Letter of Credit that permits the
automatic reinstatement of all or a portion of the stated
amount
thereof after any drawing thereunder (each, an
"Auto-Reinstatement
------------------
Letter of Credit"). Unless otherwise directed by the L/C Issuer,
the
----------------
Borrower shall not be required to make a specific request to the
L/C
Issuer to permit such reinstatement. Once an Auto-Reinstatement
Letter
of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may
not
require) the L/C Issuer to reinstate all or a portion of the
stated
amount thereof in accordance with the provisions of such Letter
of
Credit. Notwithstanding the foregoing, if such
Auto-Reinstatement
Letter of Credit permits the L/C Issuer to decline to reinstate all
or
any portion of the stated amount thereof after a drawing thereunder
by
giving notice of such non-reinstatement within a specified number
of
days after such drawing (the "Non-Reinstatement Deadline"), the
L/C
--------------------------
Issuer shall not permit such reinstatement if it has received a
notice
(which may be by telephone or in writing) on or before the day that
is
five Business Days before the Non-Reinstatement Deadline (A) from
the
Agent that the Required Lenders have elected not to permit such
reinstatement or (B) from the Agent, any Lender or the Borrower
that
one or more of the applicable conditions specified in Section 4.02
is
------------
not then satisfied (treating such reinstatement as an L/C
Credit
Extension for purposes of this clause) and, in each case, directing
the
L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with
respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver
to the Borrower and the Agent a true and complete copy of such
Letter
of Credit or amendment and any other Issuer Documents related
thereto
and not previously provided to the Borrower.
(c) Drawings and Reimbursements; Funding of Participations.
------------------------------------------------------
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the L/C
Issuer
shall notify the Borrower and the Agent thereof. Not later than
11:00
a.m. on the date of any payment by the L/C Issuer under a Letter
of
Credit (each such date, an "Honor Date"), the Borrower shall
reimburse
----------
the L/C Issuer through the Agent in an amount equal to the amount
of
such drawing. If the Borrower fails to so reimburse the L/C Issuer
by
such time, the Agent shall promptly notify each Lender of the
Honor
Date, the amount of the unreimbursed drawing (the "Unreimbursed
------------
Amount"), and the amount of such Lender's Applicable Percentage
------
thereof. In such event, and in lieu of the obligation of the
Borrower
to reimburse the L/C Issuer as provided in the immediately
preceding
sentence the Borrower shall be deemed to have requested a
Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in
an
amount equal to the Unreimbursed Amount, without regard to the
conditions for extensions of credit in Section 4.02 or the minimum
and
------------
multiples specified in Section 2.02 for the principal amount of
Base
------------
Rate Loans, but subject to the amount of the unutilized portion of
the
Aggregate Commitments. If any Unreimbursed Amount is not fully
refinanced by a Committed Borrowing of Base Rate Loans because
a
Committed Borrowing of Base Rate Loans cannot be made for any
reason,
then each Lender shall fund its participation interest in the
unreimbursed drawing under such Letter of Credit promptly on
notice
from the Administrative Agent by making funds available to the
Agent
for the account of the L/C Issuer at the Agent's Office in an
amount
equal to such Lender's Applicable Percentage of such
Unreimbursed
Amount. Any notice given by the L/C Issuer or the Agent pursuant
to
this Section 2.03(c)(i) may be given by telephone if
immediately
------------------
confirmed in writing; provided that the lack of such an
immediate
--------
confirmation shall not affect the conclusiveness or binding effect
of
such notice.
(ii) Each Lender shall upon any notice pursuant to Section
-------
2.03(c)(i) make funds available to the Agent for the account of the
L/C
----------
Issuer at the Agent's Office in an amount equal to its
Applicable
Percentage of the Unreimbursed Amount not later than 10:00 a.m. on
the
Business Day specified in such notice by the Agent. The Agent
shall
remit the funds so received to the L/C Issuer.
(iii) Until each Lender funds its Committed Loan or its
participation interest pursuant to this Section 2.03(c) to
reimburse
---------------
the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Applicable Percentage of
such
amount shall be solely for the account of the L/C Issuer.
(iv) Each Lender's obligation to make Committed Loans or to
fund its participation interest, as contemplated by this
Section
-------
2.03(c), shall be absolute and unconditional and shall not be
affected
-------
by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have
against
the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C)
any
other occurrence, event or condition, whether or not similar to any
of
the foregoing. No funding of any participation interest by a
Lender
pursuant to this Section 2.03(c) shall relieve or otherwise impair
the
---------------
obligation of the Borrower to reimburse the L/C Issuer for the
amount
of any payment made by the L/C Issuer under any Letter of
Credit,
together with interest as provided herein.
(v) If any Lender fails to make available to the Agent for the
account of the L/C Issuer any amount required to be paid by such
Lender
pursuant to the foregoing provisions of this Section 2.03(c) by
the
---------------
time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled
-------------------
to recover from such Lender (acting through the Agent), on demand,
such
amount with interest thereon for the period from the date such
payment
is required to the date on which such payment is immediately
available
to the L/C Issuer at a rate per annum equal to the greater of
the
Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation,
plus
any administrative, processing or similar fees customarily charged
by
the L/C Issuer in connection with the foregoing. If such Lender
pays
such amount (with interest and fees as aforesaid), the amount so
paid
shall constitute such Lender's Committed Loan included in the
relevant
Committed Borrowing or such Lender's funding of its
participation
interest,
as the case may be. A certificate of the L/C Issuer submitted
to any Lender (through the Agent) with respect to any amounts
owing
under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations by the Lenders.
------------------------------------------
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such
Lender's
payment for its participation interest in such Letter of Credit, if
the
Agent receives for the account of the L/C Issuer any payment in
respect
of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise), the Agent will distribute
to
such Lender its Applicable Percentage thereof in the same funds
as
those received by the Agent.
(ii) If any payment received by the Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
------------------
returned under any of the circumstances described in Section
10.05
-------------
(including pursuant to any settlement entered into by the L/C
Issuer in
its discretion), each Lender shall pay to the Agent for the account
of
the L/C Issuer its Applicable Percentage thereof on demand of
the
Agent, plus interest thereon from the date of such demand to the
date
such amount is returned by such Lender, at a rate per annum equal
to
the Federal Funds Rate from time to time in effect. The obligations
of
the Lenders under this clause shall survive the payment in full of
the
Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse
--------------------
the L/C Issuer for each drawing under each Letter of Credit and to
repay each
Unreimbursed Amount under any Letter of Credit shall be absolute,
unconditional
and irrevocable, and shall be paid strictly in accordance with the
terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that the Borrower or any Subsidiary may have at any
time
against any beneficiary or any transferee of such Letter of Credit
(or
any Person for whom any such beneficiary or any such transferee may
be
acting), the L/C Issuer or any other Person, whether in connection
with
this Agreement, the transactions contemplated hereby or by such
Letter
of Credit or any agreement or instrument relating thereto, or
any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent,
invalid or insufficient in any respect or any statement therein
being
untrue or inaccurate in any respect; or any loss or delay in
the
transmission or otherwise of any document required in order to make
a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not
strictly
comply with the terms of such Letter of Credit; or any payment made
by
the L/C Issuer under such Letter of Credit to any Person purporting
to
be a trustee in bankruptcy, debtor-in-possession, assignee for
the
benefit of creditors, liquidator, receiver or other representative
of
or successor to any beneficiary or any transferee of such Letter
of
Credit, including any arising in connection with any proceeding
under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other
circumstance
that might otherwise constitute a defense available to, or a
discharge
of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit
and
each amendment thereto that is delivered to it and, in the event of
any claim of
noncompliance with the Borrower's instructions or other
irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall
be
conclusively deemed to have waived any such claim against the L/C
Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that,
in
------------------
paying any drawing under a Letter of Credit, the L/C Issuer shall
not have any
responsibility to obtain any document (other than any sight draft,
certificates
and documents expressly required by the Letter of Credit) or to
ascertain or
inquire as to the validity or accuracy of any such document or the
authority of
the Person executing or delivering any such document. None of the
L/C Issuer,
the Agent, any of their respective Related Parties nor any
correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i)
any action taken or omitted in connection herewith at the request
or with the
approval of the Lenders or the Required Lenders, as applicable;
(ii) any action
taken or omitted in the absence of gross negligence or willful
misconduct; or
(iii) the due execution, effectiveness, validity or enforceability
of any
document or instrument related to any Letter of Credit or Issuer
Document. The
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or
transferee with respect to its use of any Letter of Credit;
provided, however,
-------- -------
that this assumption is not intended to, and shall not, preclude
the Borrower's
pursuing such rights and remedies as it may have against the
beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, the
Agent, any of their respective Related Parties nor any
correspondent,
participant or assignee of the L/C Issuer shall be liable or
responsible for any
of the matters described in clauses (i) through (v) of Section
2.03(e);
---------------
provided, however, that anything in such clauses to the
contrary
-------- -------
notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the
L/C Issuer may be liable to the Borrower, to the extent, but only
to the extent,
of any direct, as opposed to consequential or exemplary, damages
suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer's
willful
misconduct or gross negligence or the L/C Issuer's willful failure
to pay under
any Letter of Credit after the presentation to it by the
beneficiary of a sight
draft and certificate(s) strictly complying with the terms and
conditions of a
Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C
Issuer may accept documents that appear on their face to be in
order, without
responsibility for further investigation, regardless of any notice
or
information to the contrary, and the L/C Issuer shall not be
responsible for the
validity or sufficiency of any instrument transferring or assigning
or
purporting to transfer or assign a Letter of Credit or the rights
or benefits
thereunder or proceeds thereof, in whole or in part, which may
prove to be
invalid or ineffective for any reason.
(g) Letters of Credit Issued for Subsidiaries. Notwithstanding that
a
-----------------------------------------
Letter of Credit issued or outstanding hereunder is in support of
any
obligations of, or is for the account of, a Subsidiary, the
Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all
drawings under
such Letter of Credit. The Borrower hereby acknowledges that the
issuance of
Letters of Credit for the account of Subsidiaries inures to the
benefit of the
Borrower, and that the Borrower's business derives substantial
benefits from the
businesses of such Subsidiaries.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed
by
----------------------------
the L/C Issuer and the Borrower when a Letter of Credit is issued
(including any
such agreement applicable to an Existing Letter of Credit), (i) the
rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the
Uniform Customs and Practice for Documentary Credits, as most
recently published
by the International Chamber of Commerce at the time of issuance
shall apply to
each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Agent for
the
---------------------
account of each Lender in accordance with its Applicable Percentage
a Letter of
Credit fee (the "Letter of Credit Fee") for each Letter of Credit
equal to the
--------------------
Applicable Rate times the daily amount available to be drawn under
such Letter
of Credit. Letter of Credit Fees shall be (i) due and payable on
the first
Business Day after the end of each March, June, September and
December,
commencing with the first such date to occur after the issuance of
such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter
on demand,
(ii) computed on a quarterly basis in arrears and (iii) computed
for the actual
number of days that such Letters of Credit are outstanding during
the applicable
quarter. If there is any change in the Applicable Rate during any
quarter, the
daily amount available to be drawn under each Letter of Credit
shall be computed
and multiplied by the Applicable Rate separately for each period
during such
quarter that such Applicable Rate was in effect. Notwithstanding
anything to the
contrary contained herein, upon the request of the Required
Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at
the Default
Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C
------------------------------------------------------------------
Issuer. The Borrower shall pay directly to the L/C Issuer for its
own account a
------
fronting fee with respect to each issuance or amendment of a Letter
of Credit,
at a rate and at the times separately agreed between the Borrower
and the L/C
Issuer. In addition, the Borrower shall pay directly to the L/C
Issuer for its
own account the customary issuance, presentation, amendment and
other processing
fees, and other standard costs and charges, of the L/C Issuer
relating to
letters of credit as from time to time in effect. Such customary
fees and
standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any
conflict
------------------------------
between the terms hereof and the terms of any Issuer Document, the
terms hereof
shall control.
2.04
Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set
forth
--------------
herein, the Swing Line Lender agrees, in reliance upon the
agreements of the
other Lenders set forth in this Section 2.04, to make loans (each
such loan, a
------------
"Swing Line Loan") to the Borrower from time to time on any
Business Day during
---------------
the Availability Period in an aggregate amount not to exceed at any
time
outstanding the amount of the Swing Line Sublimit; provided,
however, that after
-------- -------
giving effect to any Swing Line Loan, (i) the Total Outstandings
shall not
exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of
the Committed Loans of any Lender, plus such Lender's Applicable
Percentage of
----
the Outstanding Amount of all L/C Obligations, plus such Lender's
Applicable
----
Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed
such Lender's Commitment, and provided, further, that the Borrower
shall not use
-------- -------
the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line
Loan. Prior to a refinancing of a Swing Line Loan or the funding of
a risk
participation in Swing Line Loans, in either case, pursuant to
Section 2.04(c),
---------------
it is understood and agreed that the outstanding Swing Line Loans,
when
aggregated with the Applicable Percentage of the Outstanding Amount
of Committed
Loans and L/C Obligations of the Swing Line Lender, may exceed the
amount of
such Lender's Commitment. Subject to the other terms and conditions
hereof, the
Borrower may borrow Swing Line Loans under this Section 2.04, repay
or prepay
------------
such Swing Line Loans, reborrow such Swing Line Loans and borrow
other Swing
Line Loans under this Section 2.04. Immediately upon the making of
a Swing Line
------------
Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally
agrees to, purchase from the Swing Line Lender a risk participation
in such
Swing Line Loan in an amount equal to the product of such Lender's
Applicable
Percentage times the amount of such Swing Line Loan.
-----
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made
upon
--------------------
the Borrower's irrevocable notice to the Swing Line Lender and the
Agent, which
may be given by telephone. Each such notice must be received by the
Swing Line
Lender and the Agent not later than 10:00 a.m. on the requested
borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a
minimum of
$100,000, and (ii) the requested borrowing date, which shall be a
Business Day.
Each such telephonic notice must be confirmed promptly (and in any
event within
one (1) Business Day) by delivery to the Swing Line Lender and the
Agent of a
written Swing Line Loan Notice, appropriately completed and signed
by an
Authorized Officer of the Borrower. Promptly after receipt by the
Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will
confirm with the Agent (by telephone or in writing) that the Agent
has also
received such Swing Line Loan Notice and, if not, the Swing Line
Lender will
notify the Agent (by telephone or in writing) of the contents
thereof. Unless
the Swing Line Lender has received notice (by telephone or in
writing) from the
Agent (including at the request of any Lender) prior to 2:00 p.m.
on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line
Lender not to
make such Swing Line Loan as a result of the limitations set forth
in the
proviso to the first sentence of Section 2.04(a), or (B) that one
or more of the
---------------
applicable conditions specified in Article IV is not then
satisfied, then,
----------
subject to the terms and conditions hereof, the Swing Line Lender
will, not
later than 3:00 p.m. on the borrowing date specified in such Swing
Line Loan
Notice, make the amount of its Swing Line Loan available to the
Borrower.
(c) Refinancing of Swing Line Loans.
-------------------------------
(i) At any time after the date of repayment of any Swing Line
Loan that was agreed between the Borrower and the Swing Line
Lender
following the giving of the Swing Line Loan Notice and before
the
making of such Swing Line Loan, to the extent that all or any
portion
of such Swing Line Loan has not been repaid by the Borrower on
the
agreed date for repayment, the Swing Line Lender at any time in
its
sole and absolute discretion may request, on behalf of the
Borrower
(which hereby irrevocably authorizes the Swing Line Lender to
so
request on its behalf), that each Lender make a Base Rate Loan in
an
amount equal to such Lender's Applicable Percentage of the amount
of
Swing Line Loans then outstanding (which Base Rate Loans shall be
used
to refinance such Swing Line Loans). Such request shall be made
in
writing (which written request shall be deemed to be a Committed
Loan
Notice for purposes hereof) and in accordance with the requirements
of
Section 2.02, without regard to the minimum and multiples
specified
------------
therein for the principal amount of Base Rate Loans, but subject to
the
unutilized portion of the Aggregate Commitments and the conditions
set
forth in Section 4.02. The Swing Line Lender shall furnish the
Borrower
------------
with a copy of the applicable Committed Loan Notice promptly
after
delivering such notice to the Agent. Each Lender shall make an
amount
equal to its Applicable Percentage of the amount specified in
such
Committed
Loan Notice available to the Agent in immediately available
funds for the account of the Swing Line Lender at the Agent's
Office
not later than 10:00 a.m. on the day specified in such Committed
Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that
so
-------------------
makes funds available shall be deemed to have made a Base Rate Loan
to
the Borrower in such amount. The Agent shall remit the funds so
received to the Swing Line Lender. To the extent that a Swing Line
Loan
has been refinanced with a Borrowing of Base Rate Loans pursuant
to
this Section 2.04(c)(i), such Swing Line Loan shall be deemed
repaid
----------
for all purposes herein.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with
Section
-------
2.04(c)(i), the request for Base Rate Loans submitted by the Swing
Line
----------
Lender as set forth herein shall be deemed to be a request by the
Swing
Line Lender that each of the Lenders fund its risk participation in
the
relevant Swing Line Loan and each Lender's payment to the Agent for
the
account of the Swing Line Lender pursuant to Section 2.04(c)(i)
shall
------------------
be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Agent for
the account of the Swing Line Lender any amount required to be paid
by
such Lender pursuant to the foregoing provisions of this
Section
-------
2.04(c) by the time specified in Section 2.04(c)(i), the Swing
Line
-------
------------------
Lender shall be entitled to recover from such Lender (acting
through
the Agent), on demand, such amount with interest thereon for the
period
from the date such payment is required to the date on which
such
payment is immediately available to the Swing Line Lender at a rate
per
annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking
industry
rules on interbank compensation, plus any administrative,
processing or
similar fees customarily charged by the Swing Line Lender in
connection
with the foregoing. If such Lender pays such amount (with interest
and
fees as aforesaid), the amount so paid shall constitute such
Lender's
Committed Loan included in the relevant Committed Borrowing or
funded
participation in the relevant Swing Line Loan, as the case may be.
A
certificate of the Swing Line Lender submitted to any Lender
(through
the Agent) with respect to any amounts owing under this clause
(iii)
shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans pursuant
to
this Section 2.04(c) shall be absolute and unconditional and shall
not
---------------
be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender
may
have against the Swing Line Lender, the Borrower or any other
Person
for any reason whatsoever, (B) the occurrence or continuance of
a
Default, or (C) any other occurrence, event or condition, whether
or
not similar to any of the foregoing; provided, however, that
each
-------- -------
Lender's obligation to make Committed Loans pursuant to this
Section
-------
2.04(c) is subject to the conditions set forth in Section 4.02. No
such
-------
------------
funding of risk participations shall relieve or otherwise impair
the
obligation of the Borrower to repay Swing Line Loans, together
with
interest as provided herein.
(d) Repayment of Participations.
---------------------------
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line
Lender
receives any payment on account of such Swing Line Loan, the Swing
Line
Lender will distribute to such Lender its Applicable Percentage
thereof
in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required
to
be returned by the Swing Line Lender under any of the
circumstances
described in Section 10.05 (including pursuant to any
settlement
-------------
entered into by the Swing Line Lender in its discretion), each
Lender
shall pay to the Swing Line Lender its Applicable Percentage
thereof on
demand of the Agent, plus interest thereon from the date of such
demand
to the date such amount is returned, at a rate per annum equal to
the
Federal Funds Rate. The Agent will make such demand upon the
request of
the Swing Line Lender. The obligations of the Lenders under this
clause
shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line
Lender
-----------------------------------------
shall be responsible for invoicing the Borrower for interest on the
Swing Line
Loans. Until each Lender funds its Base Rate Loan or risk
participation pursuant
to this Section 2.04 to refinance such Lender's Applicable
Percentage of any
------------
Swing Line Loan, interest in respect of such Applicable Percentage
shall be
solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all
--------------------------------------
payments of principal and interest in respect of the Swing Line
Loans directly
to the Swing Line Lender.
2.05
Prepayments.
(a) The Borrower may, upon notice to the Agent, at any time or
from
time to time voluntarily prepay Committed Loans in whole or in part
without
premium or penalty; provided that (i) such notice must be received
by the Agent
--------
not later than 11:00 a.m. (A) four Business Days prior to any date
of prepayment
of Eurodollar Loans and (B) three Business Days prior to any date
of prepayment
of Base Rate Loans; (ii) any prepayment of Eurodollar Loans shall
be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in
excess
thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal
amount of $500,000 or a whole multiple of $100,000 in excess
thereof or, in each
case, if less, the entire principal amount thereof then
outstanding. Each such
notice shall specify the date and amount of such prepayment and the
Type(s) of
Committed Loans to be prepaid and, if Eurodollar Loans are to be
prepaid, the
Interest Period(s) of such Loans. The Agent will promptly notify
each Lender of
its receipt of each such notice, and of the amount of such Lender's
Applicable
Percentage of such prepayment. If the Borrower gives a prepayment
notice, then
the Borrower shall make such prepayment and the payment amount
specified in such
notice shall be due and payable on the date specified therein. Any
prepayment of
a Eurodollar Loan shall be accompanied by all accrued interest on
the amount
prepaid, together with any additional amounts required pursuant to
Section 3.05.
------------
Each such prepayment shall be applied to the Committed Loans of the
Lenders in
accordance with their respective Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with a
copy
to the Agent), at any time or from time to time, voluntarily prepay
Swing Line
Loans in whole or in part without premium or penalty; provided that
(i) such
--------
notice must be received by the Swing Line Lender and the Agent not
later than
1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be
in a minimum principal amount of $50,000. Each such notice shall
specify the
date and amount of such prepayment. If such notice is given by the
Borrower, the
Borrower shall make such prepayment and the payment amount
specified in such
notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed
the
Aggregate Commitments, the Borrower shall immediately prepay Loans
and/or cash
collateralize the L/C Obligations in an aggregate amount equal to
such excess;
provided, however, that the Borrower shall not be required to cash
collateralize
-------- -------
the L/C Obligations pursuant to this Section 2.05(c) unless after
the prepayment
---------------
in full of the Loans the Total Outstandings exceed the Aggregate
Commitments
then in effect.
2.06
Termination or Reduction of Commitments. The Borrower may,
upon notice to the Agent, terminate the Aggregate Commitments, or
from time to
time permanently reduce the Aggregate Commitments; provided that
(i) any such
--------
notice shall be received by the Agent not later than 11:00 a.m.
five Business
Days prior to the date of termination or reduction, (ii) any such
reduction
shall be in an aggregate amount of $10,000,000 or any whole
multiple of
$1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to
any concurrent
prepayments hereunder, the Total Outstandings would exceed the
Aggregate
Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate
Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds
the amount of the Aggregate Commitments, such Sublimit shall be
automatically
reduced by the amount of such excess. The Agent will promptly
notify the Lenders
of any such notice of termination or reduction of the Aggregate
Commitments. Any
reduction of the Aggregate Commitments shall be applied to the
Commitment of
each Lender according to its Applicable Percentage. All fees
accrued until the
effective date of any termination of the Aggregate Commitments
shall be paid on
the effective date of such termination.
2.07
Repayment of Loans.
(a) The Borrower shall repay to the Lenders on the Maturity Date
the
aggregate principal amount of Committed Loans outstanding on such
date.
(b) Except to the extent previously refinanced with a Base Rate
Loan
pursuant to Section 2.04(c), the Borrower shall repay each Swing
Line Loan on
---------------
the earlier to occur of (i) the date agreed between the Borrower
and the Swing
Line Lender after the giving of a Swing Line Notice by the Borrower
and before
the making of a Swing Line Loan by the Swing Line Lender (which
date shall not
be greater than ten Business Days after such Loan is made) and (ii)
the Maturity
Date.
2.08
Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Loan shall bear interest on the outstanding principal
amount thereof
for each Interest Period at a rate per annum equal to the
Eurodollar Rate for
such Interest Period plus the Applicable Rate; (ii) each Base Rate
Loan shall
----
bear interest on the outstanding principal amount thereof from the
applicable
borrowing date at a rate per annum equal to the Base Rate; and
(iii) each Swing
Line Loan shall bear interest on the outstanding principal amount
thereof from
the applicable borrowing date at a rate agreed between the Borrower
and the
Swing Line Lender after the giving of a Swing Line Notice by the
Borrower and
before the making of a Swing Line Loan by the Swing Line
Lender.
(b) (i) If any amount of principal of any Loan is not paid when
due
(without regard to any applicable grace periods), whether at stated
maturity, by
acceleration or otherwise, such amount shall thereafter bear
interest at a
fluctuating interest rate per annum at all times equal to the
Default Rate to
the fullest extent permitted by applicable laws.
(ii) If any amount (other than principal of any Loan) payable
by the Borrower under any Loan Document (including any
Unreimbursed
Amount that is not refinanced by a Committed Borrowing of Base
Rate
Loans
pursuant to Section 2.03(c)(i)) is not paid when due (without
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regard to any applicable grace periods), whether at stated
maturity, by
acceleration or otherwise, then upon the request of the
Required
Lenders, such amount shall thereafter bear interest at a
fluctuating
interest rate per annum at all times equal to the Default Rate to
the
fullest extent permitted by applicable laws.
(iii) Upon the request of the Required Lenders, while any
Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the
Default
Rate to the fullest extent permitted by applicable laws.
(iv) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable
upon
demand.
(c)
Interest on each Loan shall be due and payable in arrears on
each
Interest Payment Date applicable thereto and at such other times as
may be
specified herein. Interest hereunder shall be due and payable in
accordance with
the terms hereof before and after judgment, and before and after
the
commencement of any proceeding under any Debtor Relief Law.
2.09
Fees. In addition to
certain fees described in subsections
(i) and (j) of Section 2.03:
------------
(a) Facility Fee. The Borrower shall pay to the Agent for the
account
------------
of each Lender in accordance with its Applicable Percentage, a
facility fee
equal to the Applicable Rate times the actual daily amount of the
Aggregate
-----
Commitments (or, if the Aggregate Commitments have terminated, on
the
Outstanding Amount of all Committed Loans, Swing Line Loans and
L/C
Obligations), regardless of usage. The facility fee shall accrue at
all times
during the Availability Period (and thereafter so long as any
Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including
at any time
during which one or more of the conditions in Article IV is not
met, and shall
----------
be due and payable quarterly in arrears on the first Business Day
after the end
of each March, June, September and December, commencing with the
first such date
to occur after the Closing Date, and on the last day of the
Availability Period
(and, if applicable, thereafter on demand). The facility fee shall
be calculated
quarterly in arrears, and if there is any change in the Applicable
Rate during
any quarter, the actual daily amount shall be computed and
multiplied by the
Applicable Rate separately for each period during such quarter that
such
Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay to the Agent for its own
----------
accounts fees in the amounts and at the times specified in the Fee
Letter. Such
fees shall be fully earned when paid and shall not be refundable
for any reason
whatsoever.
2.10
Computation of Interest and Fees. All computations of interest
for Base Rate Loans when the Base Rate is determined by First
Hawaiian Bank's
"prime rate" shall be made on the basis of a year of 365 or 366
days, as the
case may be, and actual days elapsed. All other computations of
fees and
interest shall be made on the basis of a 360-day year and actual
days elapsed.
Interest shall accrue on each Loan for the day on which the Loan is
made, and
shall not accrue on a Loan, or any portion thereof, for the day on
which the
Loan or such portion is paid, provided that any Loan that is repaid
on the same
--------
day on which it is made shall, subject to Section 2.12(a), bear
interest for one
---------------
day. Each determination by the Agent of an inter
