CREDIT AGREEMENT
BY AND AMONG
XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC.
AS PARENT,
XXXXXXX & XXXXX XXXXXXXXX'X INC.
AS BORROWER,
THE LENDERS THAT ARE SIGNATORIES HERETO
AS THE LENDERS,
AND
XXXXX FARGO FOOTHILL, LLC
AS THE ARRANGER AND ADMINISTRATIVE AGENT
DATED AS OF SEPTEMBER 24, 2008
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "AGREEMENT"), is entered into as of
September 24, 2008, by and among the lenders identified on the signature pages
hereof (such lenders, together with their respective successors and permitted
assigns, are referred to hereinafter each individually as a "Lender" and
collectively as the "LENDERS"), XXXXX FARGO FOOTHILL, LLC, a Delaware limited
liability company, as the arranger and administrative agent for the Lenders (in
such capacity, together with its successors and assigns in such capacity,
"AGENT"), XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC., a Delaware corporation
("PARENT"), and XXXXXXX & XXXXX XXXXXXXXX'X INC., a Delaware corporation
("BORROWER").
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. Capitalized terms used in this Agreement shall have the
meanings specified therefor on SCHEDULE 1.1.
1.2 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. When used herein, the term
"financial statements" shall include the notes and schedules thereto. Whenever
the term "Parent" is used in respect of a financial covenant or a related
definition, it shall be understood to mean Parent and its Subsidiaries on a
consolidated basis, unless the context clearly requires otherwise.
1.3 CODE. Any terms used in this Agreement that are defined in the Code
shall be construed and defined as set forth in the Code unless otherwise defined
herein; PROVIDED, HOWEVER, that to the extent that the Code is used to define
any term herein and such term is defined differently in different Articles of
the Code, the definition of such term contained in Article 9 of the Code shall
govern.
1.4 CONSTRUCTION. Unless the context of this Agreement or any other Loan
Document clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, the terms "includes"
and "including" are not limiting, and the term "or" has, except where otherwise
indicated, the inclusive meaning represented by the phrase "and/or." The words
"hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement
or any other Loan Document refer to this Agreement or such other Loan Document,
as the case may be, as a whole and not to any particular provision of this
Agreement or such other Loan Document, as the case may be. Section, subsection,
clause, schedule, and exhibit references herein are to this Agreement unless
otherwise specified. Any reference in this Agreement or in any other Loan
Document to any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements set forth herein). 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. Any reference herein or in any other Loan
Document to the satisfaction or repayment in full of the Obligations shall mean
the repayment in full in cash (or, in the case of Letters of Credit or Bank
Products, providing Letter of Credit Collateralization) of all Obligations other
than unasserted contingent indemnification Obligations and other than any Bank
Product Obligations that, at such time, are allowed by the applicable Bank
Product Provider to remain outstanding and that are not required by the
provisions of this Agreement to be repaid or cash collateralized. Any reference
herein to any Person shall be construed to include such Person's successors and
assigns. Any requirement of a writing contained herein or in any other Loan
Document shall be satisfied by the transmission of a Record.
1.5 SCHEDULES AND EXHIBITS. All of the schedules and exhibits attached
to this Agreement shall be deemed incorporated herein by reference.
2. LOAN AND TERMS OF PAYMENT.
2.1 REVOLVER ADVANCES.
(a) Subject to the terms and conditions of this Agreement, and
during the term of this Agreement, each Lender with a Revolver Commitment agrees
(severally, not jointly or jointly and severally) to make advances ("Advances")
to Borrower in an amount at any one time outstanding not to exceed such Lender's
Pro Rata Share of an amount equal to the Maximum Revolver Amount LESS the Letter
of Credit Usage at such time.
(b) Amounts borrowed pursuant to this SECTION 2.1 may be repaid and,
subject to the terms and conditions of this Agreement, reborrowed at any time
during the term of this Agreement. The outstanding principal amount of the
Advances, together with interest accrued thereon, shall be due and payable on
the Maturity Date or, if earlier, on the date on which they are declared due and
payable pursuant to the terms of this Agreement.
(c) Anything to the contrary in this SECTION 2.1 notwithstanding,
Agent shall have the right to establish reserves against the Maximum Revolver
Amount in such amounts, and with respect to such matters, as Agent in its
Permitted Discretion shall deem necessary or appropriate, including reserves
with respect to (i) sums that Parent or its Subsidiaries are required to pay
under any Section of this Agreement or any other Loan Document (such as taxes,
assessments, insurance premiums, or, in the case of leased assets, rents or
other amounts payable under such leases) and has failed to pay, and (ii) amounts
owing by Parent or its Subsidiaries to any Person to the extent secured by a
Lien on, or trust over, any of the Collateral (other than a Permitted Lien),
which Lien or trust, in the Permitted Discretion of Agent likely would have a
priority superior to the Agent's Liens.
2.2 [INTENTIONALLY OMITTED].
2.3 BORROWING PROCEDURES AND SETTLEMENTS.
(a) PROCEDURE FOR BORROWING. Each Borrowing shall be made by a
written request by an Authorized Person delivered to Agent. Unless Swing Lender
is not obligated to make a Swing Loan pursuant to SECTION 2.3(B) below, such
notice must be received by Agent no later than 10:00 a.m. (California time) on
the Business Day that is the requested Funding Date specifying (i) the amount of
such Borrowing, and (ii) the requested Funding Date, which shall be a Business
Day; PROVIDED, HOWEVER, that if Swing Lender is not obligated to make a Swing
Loan as to a requested Borrowing, such notice must be received by Agent no later
than 10:00 a.m. (California time) on the Business Day prior to the date that is
the requested Funding Date. At Agent's election, in lieu of delivering the
above-described written request, any Authorized Person may give Agent telephonic
notice of such request by the required time. In such circumstances, Borrower
agrees that any such telephonic notice will be confirmed in writing within 24
hours of the giving of such telephonic notice, but the failure to provide such
written confirmation shall not affect the validity of the request.
(b) MAKING OF SWING LOANS. In the case of a request for an Advance
and so long as either (i) the aggregate amount of Swing Loans made since the
last Settlement Date, minus the amount of Collections or payments applied to
Swing Loans since the last Settlement Date, plus the amount of the requested
Advance does not exceed $5,000,000, or (ii) Swing Lender, in its sole
discretion, shall agree to make a Swing Loan notwithstanding the foregoing
limitation, Swing Lender shall make an Advance in the amount of such Borrowing
(any such Advance made solely by Swing Lender pursuant to this SECTION 2.3(B)
being referred to as a "SWING LOAN" and such Advances being referred to
collectively as "SWING LOANS") available to Borrower on the Funding Date
applicable thereto by transferring immediately available funds to Borrower's
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Designated Account. Each Swing Loan shall be deemed to be an Advance hereunder
and shall be subject to all the terms and conditions applicable to other
Advances, except that all payments on any Swing Loan shall be payable to Swing
Lender solely for its own account. Subject to the provisions of SECTION
2.3(D)(II), Swing Lender shall not make and shall not be obligated to make any
Swing Loan if Swing Lender has actual knowledge that (i) one or more of the
applicable conditions precedent set forth in SECTION 3 will not be satisfied on
the requested Funding Date for the applicable Borrowing, or (ii) the requested
Borrowing would exceed the Availability on such Funding Date. Swing Lender shall
not otherwise be required to determine whether the applicable conditions
precedent set forth in SECTION 3 have been satisfied on the Funding Date
applicable thereto prior to making any Swing Loan. The Swing Loans shall be
secured by the Agent's Liens, constitute Obligations hereunder, and bear
interest at the rate applicable from time to time to Advances that are Base Rate
Loans.
(c) MAKING OF LOANS.
(i) In the event that Swing Lender is not obligated to make a
Swing Loan, then promptly after receipt of a request for a Borrowing pursuant to
SECTION 2.3(A), Agent shall notify the Lenders, not later than 1:00 p.m.
(California time) on the Business Day immediately preceding the Funding Date
applicable thereto, by telecopy, telephone, or other similar form of
transmission, of the requested Borrowing. Each Lender shall make the amount of
such Lender's Pro Rata Share of the requested Borrowing available to Agent in
immediately available funds, to Agent's Account, not later than 10:00 a.m.
(California time) on the Funding Date applicable thereto. After Agent's receipt
of the proceeds of such Advances, Agent shall make the proceeds thereof
available to Borrower on the applicable Funding Date by transferring immediately
available funds equal to such proceeds received by Agent to the Designated
Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION
2.3(D)(II), Agent shall not request any Lender to make, and no Lender shall have
the obligation to make, any Advance if (1) one or more of the applicable
conditions precedent set forth in SECTION 3 will not be satisfied on the
requested Funding Date for the applicable Borrowing unless such condition has
been waived, or (2) the requested Borrowing would exceed the Availability on
such Funding Date.
(ii) Unless Agent receives notice from a Lender prior to 9:00
a.m. (California time) on the date of a Borrowing, that such Lender will not
make available as and when required hereunder to Agent for the account of
Borrower the amount of that Lender's Pro Rata Share of the Borrowing, Agent may
assume that each Lender has made or will make such amount available to Agent in
immediately available funds on the Funding Date and Agent may (but shall not be
so required), in reliance upon such assumption, make available to Borrower on
such date a corresponding amount. If any Lender shall not have made its full
amount available to Agent in immediately available funds and if Agent in such
circumstances has made available to Borrower such amount, that Lender shall on
the Business Day following such Funding Date make such amount available to
Agent, together with interest at the Defaulting Lender Rate for each day during
such period. A notice submitted by Agent to any Lender with respect to amounts
owing under this subsection shall be conclusive, absent manifest error. If such
amount is so made available, such payment to Agent shall constitute such
Lender's Advance on the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to Agent on the Business Day following the
Funding Date, Agent will notify Borrower of such failure to fund and, upon
demand by Agent, Borrower shall pay such amount to Agent for Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Advances composing such Borrowing. The failure of any Lender to make any
Advance on any Funding Date shall not relieve any other Lender of any obligation
hereunder to make an Advance on such Funding Date, but no Lender shall be
responsible for the failure of any other Lender to make the Advance to be made
by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting
Lender any payments made by Borrower to Agent for the Defaulting Lender's
benefit, and, in the absence of such transfer to the Defaulting Lender, Agent
shall transfer any such payments to each other non-Defaulting Lender member of
the Lender Group ratably in accordance with their Commitments (but only to the
extent that such Defaulting
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Lender's Advance was funded by the other members of the Lender Group) or, if so
directed by Borrower and if no Default or Event of Default has occurred and is
continuing (and to the extent such Defaulting Lender's Advance was not funded by
the Lender Group), retain same to be re-advanced to Borrower as if such
Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent
may hold and, in its Permitted Discretion, re-lend to Borrower for the account
of such Defaulting Lender the amount of all such payments received and retained
by Agent for the account of such Defaulting Lender. Solely for the purposes of
voting or consenting to matters with respect to the Loan Documents, such
Defaulting Lender shall be deemed not to be a "Lender" and such Lender's
Commitment shall be deemed to be zero. This Section shall remain effective with
respect to such Lender until (x) the Obligations under this Agreement shall have
been declared or shall have become immediately due and payable, (y) the
non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting
Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata
Share of the applicable Advance and pays to Agent all amounts owing by
Defaulting Lender in respect thereof. The operation of this Section shall not be
construed to increase or otherwise affect the Commitment of any Lender, to
relieve or excuse the performance by such Defaulting Lender or any other Lender
of its duties and obligations hereunder, or to relieve or excuse the performance
by Borrower of its duties and obligations hereunder to Agent or to the Lenders
other than such Defaulting Lender. Any such failure to fund by any Defaulting
Lender shall constitute a material breach by such Defaulting Lender of this
Agreement and shall entitle Borrower at its option, upon written notice to
Agent, to arrange for a substitute Lender to assume the Commitment of such
Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent.
In connection with the arrangement of such a substitute Lender, the Defaulting
Lender shall have no right to refuse to be replaced hereunder, and agrees to
execute and deliver a completed form of Assignment and Acceptance in favor of
the substitute Lender (and agrees that it shall be deemed to have executed and
delivered such document if it fails to do so) subject only to being repaid its
share of the outstanding Obligations (other than Bank Product Obligations, but
including an assumption of its Pro Rata Share of the Risk Participation
Liability) without any premium or penalty of any kind whatsoever; PROVIDED,
HOWEVER, that any such assumption of the Commitment of such Defaulting Lender
shall not be deemed to constitute a waiver of any of the Lender Groups' or
Borrower's rights or remedies against any such Defaulting Lender arising out of
or in relation to such failure to fund.
(d) PROTECTIVE ADVANCES AND OPTIONAL OVERADVANCES.
(i) Agent hereby is authorized by Borrower and the Lenders, from
time to time in Agent's sole discretion, (A) after the occurrence and during the
continuance of a Default or an Event of Default, or (B) at any time that any of
the other applicable conditions precedent set forth in SECTION 3 are not
satisfied, to make Advances to Borrower on behalf of the Lenders that Agent, in
its Permitted Discretion deems necessary or desirable (1) to preserve or protect
the Collateral, or any portion thereof, or (2) to enhance the likelihood of
repayment of the Obligations (other than the Bank Product Obligations) (any of
the Advances described in this SECTION 2.3(D)(I) shall be referred to as
"PROTECTIVE ADVANCES").
(ii) Any contrary provision of this Agreement notwithstanding,
the Lenders hereby authorize Agent or Swing Lender, as applicable, and either
Agent or Swing Lender, as applicable, may, but is not obligated to, knowingly
and intentionally, continue to make Advances (including Swing Loans) to Borrower
notwithstanding that an Overadvance exists or thereby would be created, so long
as after giving effect to such Advances, the outstanding Revolver Usage (except
for and excluding amounts charged to the Loan Account for interest, fees, or
Lender Group Expenses) does not exceed the Maximum Revolver Amount. In the event
Agent obtains actual knowledge that the Revolver Usage exceeds the amounts
permitted by the immediately foregoing provisions, regardless of the amount of,
or reason for, such excess, Agent shall notify the Lenders as soon as
practicable (and prior to making any (or any additional) intentional
Overadvances (except for and excluding amounts charged to the Loan Account for
interest, fees, or Lender Group Expenses) unless Agent determines that prior
notice would result in imminent harm to the Collateral or its value), and the
Lenders with Revolver Commitments thereupon shall, together with Agent, jointly
determine the terms of arrangements that shall be implemented with Borrower
intended to reduce, within a reasonable time, the outstanding principal amount
of the Advances to Borrower to an amount permitted by the preceding sentence.
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In such circumstances, if any Lender with a Revolver Commitment objects to the
proposed terms of reduction or repayment of any Overadvance, the terms of
reduction or repayment thereof shall be implemented according to the
determination of the Required Lenders. Each Lender with a Revolver Commitment
shall be obligated to settle with Agent as provided in SECTION 2.3(E) for the
amount of such Lender's Pro Rata Share of any unintentional Overadvances by
Agent reported to such Lender, any intentional Overadvances made as permitted
under this SECTION 2.3(D)(II), and any Overadvances resulting from the charging
to the Loan Account of interest, fees, or Lender Group Expenses.
(iii) Each Protective Advance and each Overadvance shall be
deemed to be an Advance hereunder, except that no Protective Advance or
Overadvance shall be eligible to be a LIBOR Rate Loan and, prior to Settlement
therefor, all payments on the Protective Advances shall be payable to Agent
solely for its own account. The Protective Advances and Overadvances shall be
repayable on demand, secured by the Agent's Liens, constitute Obligations
hereunder, and bear interest at the rate applicable from time to time to
Advances that are Base Rate Loans. The provisions of this SECTION 2.3(D) are for
the exclusive benefit of Agent, Swing Lender, and the Lenders and are not
intended to benefit Borrower in any way.
(e) SETTLEMENT. It is agreed that each Lender's funded portion of
the Advances is intended by the Lenders to equal, at all times, such Lender's
Pro Rata Share of the outstanding Advances. Such agreement notwithstanding,
Agent, Swing Lender, and the other Lenders agree (which agreement shall not be
for the benefit of Borrower) that in order to facilitate the administration of
this Agreement and the other Loan Documents, settlement among the Lenders as to
the Advances, the Swing Loans, and the Protective Advances shall take place on a
periodic basis in accordance with the following provisions:
(i) Agent shall request settlement ("SETTLEMENT") with the
Lenders on a weekly basis, or on a more frequent basis if so determined by Agent
(1) on behalf of Swing Lender, with respect to the outstanding Swing Loans, (2)
for itself, with respect to the outstanding Protective Advances, and (3) with
respect to Borrower's or its Subsidiaries' Collections or payments received, as
to each by notifying the Lenders by telecopy, telephone, or other similar form
of transmission, of such requested Settlement, no later than 2:00 p.m.
(California time) on the Business Day immediately prior to the date of such
requested Settlement (the date of such requested Settlement being the
"SETTLEMENT DATE"). Such notice of a Settlement Date shall include a summary
statement of the amount of outstanding Advances, Swing Loans, and Protective
Advances for the period since the prior Settlement Date. Subject to the terms
and conditions contained herein (including SECTION 2.3(C)(III)): (y) if a
Lender's balance of the Advances (including Swing Loans and Protective Advances)
exceeds such Lender's Pro Rata Share of the Advances (including Swing Loans and
Protective Advances) as of a Settlement Date, then Agent shall, by no later than
12:00 p.m. (California time) on the Settlement Date, transfer in immediately
available funds to a Deposit Account of such Lender (as such Lender may
designate), an amount such that each such Lender shall, upon receipt of such
amount, have as of the Settlement Date, its Pro Rata Share of the Advances
(including Swing Loans and Protective Advances), and (z) if a Lender's balance
of the Advances (including Swing Loans and Protective Advances) is less than
such Lender's Pro Rata Share of the Advances (including Swing Loans and
Protective Advances) as of a Settlement Date, such Lender shall no later than
12:00 p.m. (California time) on the Settlement Date transfer in immediately
available funds to the Agent's Account, an amount such that each such Lender
shall, upon transfer of such amount, have as of the Settlement Date, its Pro
Rata Share of the Advances (including Swing Loans and Protective Advances). Such
amounts made available to Agent under clause (z) of the immediately preceding
sentence shall be applied against the amounts of the applicable Swing Loans or
Protective Advances and, together with the portion of such Swing Loans or
Protective Advances representing Swing Lender's Pro Rata Share thereof, shall
constitute Advances of such Lenders. If any such amount is not made available to
Agent by any Lender on the Settlement Date applicable thereto to the extent
required by the terms hereof, Agent shall be entitled to recover for its account
such amount on demand from such Lender together with interest thereon at the
Defaulting Lender Rate.
(ii) In determining whether a Lender's balance of the Advances,
Swing Loans, and Protective Advances is less than, equal to, or greater than
such Lender's Pro Rata Share of the Advances,
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Swing Loans, and Protective Advances as of a Settlement Date, Agent shall, as
part of the relevant Settlement, apply to such balance the portion of payments
actually received in good funds by Agent with respect to principal, interest,
fees payable by Borrower and allocable to the Lenders hereunder, and proceeds of
Collateral.
(iii) Between Settlement Dates, Agent, to the extent Protective
Advances or Swing Loans are outstanding, may pay over to Agent or Swing Lender,
as applicable, any Collections or payments received by Agent, that in accordance
with the terms of this Agreement would be applied to the reduction of the
Advances, for application to the Protective Advances or Swing Loans. Between
Settlement Dates, Agent, to the extent no Protective Advances or Swing Loans are
outstanding, may pay over to Swing Lender any Collections or payments received
by Agent, that in accordance with the terms of this Agreement would be applied
to the reduction of the Advances, for application to Swing Lender's Pro Rata
Share of the Advances. If, as of any Settlement Date, Collections or payments of
Parent or its Subsidiaries received since the then immediately preceding
Settlement Date have been applied to Swing Lender's Pro Rata Share of the
Advances other than to Swing Loans, as provided for in the previous sentence,
Swing Lender shall pay to Agent for the accounts of the Lenders, and Agent shall
pay to the Lenders, to be applied to the outstanding Advances of such Lenders,
an amount such that each Lender shall, upon receipt of such amount, have, as of
such Settlement Date, its Pro Rata Share of the Advances. During the period
between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with
respect to Protective Advances, and each Lender (subject to the effect of
agreements between Agent and individual Lenders) with respect to the Advances
other than Swing Loans and Protective Advances, shall be entitled to interest at
the applicable rate or rates payable under this Agreement on the daily amount of
funds employed by Swing Lender, Agent, or the Lenders, as applicable.
(f) NOTATION. Agent, as a non-fiduciary agent for Borrower, shall
maintain a register showing the principal amount of the Advances, owing to each
Lender, including the Swing Loans owing to Swing Lender, and Protective Advances
owing to Agent, and the interests therein of each Lender, from time to time and
such records shall, absent manifest error, conclusively be presumed to be
correct and accurate.
(g) LENDERS' FAILURE TO PERFORM. All Advances (other than Swing
Loans and Protective Advances) shall be made by the Lenders contemporaneously
and in accordance with their Pro Rata Shares. It is understood that (i) no
Lender shall be responsible for any failure by any other Lender to perform its
obligation to make any Advance (or other extension of credit) hereunder, nor
shall any Commitment of any Lender be increased or decreased as a result of any
failure by any other Lender to perform its obligations hereunder, and (ii) no
failure by any Lender to perform its obligations hereunder shall excuse any
other Lender from its obligations hereunder.
2.4 PAYMENTS; REDUCTIONS OF COMMITMENTS; PREPAYMENTS.
(a) PAYMENTS BY BORROWER.
(i) Except as otherwise expressly provided herein, all payments
by Borrower shall be made to Agent's Account for the account of the Lender Group
and shall be made in immediately available funds, no later than 11:00 a.m.
(California time) on the date specified herein. Any payment received by Agent
later than 11:00 a.m. (California time) shall be deemed to have been received on
the following Business Day and any applicable interest or fee shall continue to
accrue until such following Business Day.
(ii) Unless Agent receives notice from Borrower prior to the
date on which any payment is due to the Lenders that Borrower will not make such
payment in full as and when required, Agent may assume that Borrower has made
(or will make) such payment in full to Agent on such date in immediately
available funds and Agent may (but shall not be so required), in reliance upon
such assumption, distribute to each Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent Borrower does not make
such payment in full to Agent on the date when due, each Lender severally shall
repay to Agent on demand such amount distributed to such Lender, together with
interest thereon at the
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Defaulting Lender Rate for each day from the date such amount is distributed to
such Lender until the date repaid.
(b) APPORTIONMENT AND APPLICATION.
(i) So long as no Application Event has occurred and is
continuing and except as otherwise provided with respect to Defaulting Lenders,
all principal and interest payments shall be apportioned ratably among the
Lenders (according to the unpaid principal balance of the Obligations to which
such payments relate held by each Lender) and all payments of fees and expenses
(other than fees or expenses that are for Agent's separate account) shall be
apportioned ratably among the Lenders having a Pro Rata Share of the type of
Commitment or Obligation to which a particular fee or expense relates. All
payments to be made hereunder by Borrower shall be remitted to Agent and all
(subject to SECTION 2.4(B)(IV)) such payments, and all proceeds of Collateral
received by Agent, shall be applied, so long as no Application Event has
occurred and is continuing, to reduce the balance of the Advances outstanding
and, thereafter, to Borrower (to be wired to the Designated Account) or such
other Person entitled thereto under applicable law.
(ii) At any time that an Application Event has occurred and is
continuing and except as otherwise provided with respect to Defaulting Lenders,
all payments remitted to Agent and all proceeds of Collateral received by Agent
shall be applied as follows:
(A) FIRST, to pay any Lender Group Expenses (including cost
or expense reimbursements) or indemnities then due to Agent under the Loan
Documents, until paid in full,
(B) SECOND, to pay any fees or premiums then due to Agent
under the Loan Documents until paid in full,
(C) THIRD, to pay interest due in respect of all Protective
Advances until paid in full,
(D) FOURTH, to pay the principal of all Protective Advances
until paid in full,
(E) FIFTH, ratably to pay any Lender Group Expenses
(including cost or expense reimbursements) or indemnities then due to any of the
Lenders under the Loan Documents, until paid in full,
(F) SIXTH, ratably to pay any fees or premiums then due to
any of the Lenders under the Loan Documents until paid in full,
(G) SEVENTH, ratably to pay interest due in respect of the
Advances (other than Protective Advances) and the Swing Loans until paid in
full,
(H) EIGHTH, ratably (i) to pay the principal of all Swing
Loans until paid in full, (ii) to pay the principal of all Advances until paid
in full, (iii) to Agent, to be held by Agent, for the benefit of Issuing Lender
and those Lenders having a share of the Risk Participation Liability, as cash
collateral in an amount up to 105% of the Letter of Credit Usage, and (iv) to
Agent, to be held by Agent, for the benefit of the Bank Product Providers, as
cash collateral in an amount up to the amount the Bank Product Reserve
established prior to the occurrence of and not in contemplation of the subject
Event of Default,
(I) NINTH, to pay any other Obligations, and
(J) TENTH, to Borrower (to be wired to the Designated
Account) or such other Person entitled thereto under applicable law.
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(iii) Agent promptly shall distribute to each Lender, pursuant
to the applicable wire instructions received from each Lender in writing, such
funds as it may be entitled to receive, subject to a Settlement delay as
provided in SECTION 2.3(E).
(iv) In each instance, so long as no Application Event has
occurred and is continuing, SECTION 2.4(B)(I) shall not apply to any payment
made by Borrower to Agent and specified by Borrower to be for the payment of
specific Obligations then due and payable (or prepayable) under any provision of
this Agreement or any other Loan Document.
(v) For purposes of SECTION 2.4(B)(II), "paid in full" means,
with respect to any Obligations described therein, payment in cash of all
amounts owing under the Loan Documents (other than Obligations consisting of
contingent indemnification obligations for which no claim has been asserted in
writing), including loan fees, service fees, professional fees, interest (and
specifically including interest accrued after the commencement of any Insolvency
Proceeding), default interest, interest on interest, and expense reimbursements;
PROVIDED, HOWEVER that for purposes of the ninth clause of SECTION 2.4(B)(II),
"paid in full" means payment of all such amounts owing under the Loan Documents
according to the terms thereof, whether or not any of the foregoing would be or
is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vi) In the event of a direct conflict between the priority
provisions of this SECTION 2.4 and any other provision contained in any other
Loan Document, it is the intention of the parties hereto that such provisions be
read together and construed, to the fullest extent possible, to be in concert
with each other. In the event of any actual, irreconcilable conflict that cannot
be resolved as aforesaid, the terms and provisions of this SECTION 2.4 shall
control and govern.
(c) REDUCTION OF COMMITMENTS. The Revolver Commitments shall
terminate on the Maturity Date. Borrower may reduce the Revolver Commitments to
an amount (which may be zero) not less than the sum of (A) the Revolver Usage as
of such date, plus (B) the principal amount of all Advances not yet made as to
which a request has been given by Borrower under SECTION 2.3(A), plus (C) the
amount of all Letters of Credit not yet issued as to which a request has been
given by Borrower pursuant to SECTION 2.11(A). Each such reduction shall be in
an amount which is an integral multiple of $1,000,000 (unless the Revolver
Commitments in effect immediately prior to such reduction are less than
$1,000,000), shall be made by providing not less than 10 Business Days prior
written notice to Agent and shall be irrevocable. Once reduced, the Revolver
Commitments may not be increased. Each such reduction of the Revolver
Commitments shall reduce the Revolver Commitments of each Lender proportionately
in accordance with its Pro Rata Share thereof.
(d) OPTIONAL PREPAYMENTS. Borrower may prepay the principal of any
Advance at any time in whole or in part, and so long as such prepayment is not
accompanied by a corresponding reduction in the Revolver Commitment, such
prepayment shall be without premium or penalty.
(e) MANDATORY PREPAYMENTS.
(i) [INTENTIONALLY OMITTED].
(ii) DISPOSITIONS. Promptly after, but in any event within 3
Business Days of the date of, receipt by Parent or any of its Subsidiaries of
the Net Cash Proceeds of any voluntary or involuntary sale or disposition by
Parent or any of its Subsidiaries of assets (including casualty losses or
condemnations), Borrower shall prepay the outstanding principal amount of the
Obligations in accordance with SECTION 2.4(F)(II) in an amount equal to 100% of
such Net Cash Proceeds (including condemnation awards and payments in lieu
thereof) that are received by such Person in connection with such sales or
dispositions to the extent that in any fiscal year such Net Cash Proceeds exceed
$1,000,000; PROVIDED that, so long as (A) no Default or Event of Default shall
have occurred and is continuing, (B) Borrower shall have given Agent prior
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written notice of Borrower's intention to apply such monies to the costs of
replacement of the properties or assets that are the subject of such sale or
disposition or the cost of purchase or construction of other assets useful in
the business of Parent or its Subsidiaries, (C) the monies are either (i) held
in a Deposit Account or Securities Account in which Agent has a perfected
first-priority security interest, or (ii) used to prepay the outstanding
principal amount of the Advances so long as a corresponding reserve is imposed
against the Maximum Revolver Amount, which reserve shall be reduced upon any
subsequent Advance that is made to the extent that the proceeds of such Advance
are applied to the costs of replacement of the assets that were the subject of
such sale or disposition pursuant to the terms and conditions of subsections
(A), (B), and (D) of this SECTION 2.4(E)(II), and (D) Parent or its
Subsidiaries, as applicable, complete such replacement, purchase, or
construction within 179 days after the initial receipt of such monies; Parent
and its Subsidiaries shall have the option to apply (I) up to $5,000,000 of such
monies each fiscal year, and (II) the Excluded Permitted Disposition Proceeds,
to the costs of replacement of the assets that are the subject of such sale or
disposition or the costs of purchase or construction of other assets useful in
the business of Parent and its Subsidiaries unless and to the extent that such
period shall have expired without such replacement, purchase or construction
being made or completed, in which case, any amounts remaining in the Deposit
Account or Securities Account shall be paid to Agent and applied in accordance
with SECTION 2.4(F)(II). Nothing contained in this SECTION 2.4(E)(II) shall
permit Parent or any of its Subsidiaries to sell or otherwise dispose of any
assets other than in accordance with SECTION 6.4.
(iii) EXTRAORDINARY RECEIPTS. If during the period from the date
on which a Default or Event of Default has occurred and is continuing and
through the date on which an Application Event has occurred, the Parent or any
of its Subsidiaries receives any Extraordinary Receipts, then promptly after,
but in any event within 3 Business Days of, the date of receipt by Parent or any
of its Subsidiaries of such Extraordinary Receipts, Borrower shall prepay the
outstanding principal amount of the Obligations in accordance with SECTION
2.4(F)(II) in an amount equal to 100% of such Extraordinary Receipts.
(iv) INDEBTEDNESS. Within 1 Business Day of the date of
incurrence by Parent or any of its Subsidiaries of any Indebtedness (other than
Permitted Indebtedness), Borrower shall prepay the outstanding principal amount
of the Obligations in accordance with SECTION 2.4(F)(II) in an amount equal to
100% of the Net Cash Proceeds received by such Person in connection with such
incurrence. The provisions of this SECTION 2.4(E)(IV) shall not be deemed to be
implied consent to any such incurrence otherwise prohibited by the terms and
conditions of this Agreement.
(v) EQUITY. Within 1 Business Day of the date of the issuance by
Parent or any of its Subsidiaries of any shares of its or their Stock (other
than (A) in the event that Parent or any of its Subsidiaries forms any
Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary
of Stock to Parent or such Subsidiary, as applicable, (B) the issuance of Stock
by Parent to Equity Sponsor, and (C) the issuance of Stock of Parent to
directors, officers and employees of Parent and its Subsidiaries pursuant to
employee stock option plans (or other employee incentive plans or other
compensation arrangements) approved by the Board of Directors), Borrower shall
prepay the outstanding principal amount of the Obligations in accordance with
SECTION 2.4(F)(II) in an amount equal to 50% of the Net Cash Proceeds received
by such Person in connection with such issuance. The provisions of this SECTION
2.4(E)(V) shall not be deemed to be implied consent to any such issuance
otherwise prohibited by the terms and conditions of this Agreement.
(f) APPLICATION OF PAYMENTS.
(i) [Intentionally Omitted].
(ii) Each prepayment pursuant to SECTION 2.4(E)(II), SECTION
2.4(E)(III), SECTION 2.4(E)(IV), or SECTION 2.4(E)(V) above shall (A) so long as
no Application Event shall have occurred and be continuing, be applied, FIRST,
to the outstanding principal amount of the Advances (with a corresponding
permanent reduction in the Maximum Revolver Amount), until paid in full, and
SECOND, to cash collateralize the Letters of Credit in an amount equal to 105%
of the then extant Letter of Credit Usage (with a
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corresponding permanent reduction in the Maximum Revolver Amount), and (B) if an
Application Event shall have occurred and be continuing, be applied in the
manner set forth in SECTION 2.4(B)(II).
2.5 OVERADVANCES. If, at any time or for any reason, the amount of
Obligations owed by Borrower to the Lender Group pursuant to SECTION 2.1 or
SECTION 2.11 is greater than any of the limitations set forth in SECTION 2.1 or
SECTION 2.11, as applicable (an "OVERADVANCE"), Borrower shall promptly, but in
any event, within 1 Business Day of the occurrence of such Overadvance, pay to
Agent, in cash, the amount of such excess, which amount shall be used by Agent
to reduce the Obligations in accordance with the priorities set forth in SECTION
2.4(B). Borrower promises to pay the Obligations (including principal, interest,
fees, costs, and expenses) in Dollars in full on the Maturity Date or, if
earlier, on the date on which the Obligations are declared due and payable
pursuant to the terms of this Agreement.
2.6 INTEREST RATES AND LETTER OF CREDIT FEE: RATES, PAYMENTS, AND
CALCULATIONS.
(a) INTEREST RATES. Except as provided in SECTION 2.6(C), all
Obligations (except for undrawn Letters of Credit and except for Bank Product
Obligations) that have been charged to the Loan Account pursuant to the terms
hereof shall bear interest on the Daily Balance thereof as follows:
(i) if the relevant Obligation is a LIBOR Rate Loan, at a per
annum rate equal to the LIBOR Rate plus the LIBOR Rate Margin, and
(ii) otherwise, at a per annum rate equal to the Base Rate plus
the Base Rate Margin.
(b) LETTER OF CREDIT FEE. Borrower shall pay Agent (for the ratable
benefit of the Lenders with a Revolver Commitment, subject to any agreements
between Agent and individual Lenders), a Letter of Credit fee (in addition to
the charges, commissions, fees, and costs set forth in SECTION 2.11(E)) which
shall accrue at a per annum rate equal to the LIBOR Rate Margin times the Daily
Balance of the undrawn amount of all outstanding Letters of Credit.
(c) DEFAULT RATE. Upon the occurrence and during the continuation of
an Event of Default and at the election of the Required Lenders,
(i) all Obligations (except for undrawn Letters of Credit and
except for Bank Product Obligations) that have been charged to the Loan Account
pursuant to the terms hereof shall bear interest on the Daily Balance thereof at
a per annum rate equal to 2 percentage points above the per annum rate otherwise
applicable hereunder, and
(ii) the Letter of Credit fee provided for in SECTION 2.6(B)
shall be increased to 2 percentage points above the per annum rate otherwise
applicable hereunder.
(d) PAYMENT. Except as provided to the contrary in SECTION 2.10 or
SECTION 2.12(A), interest, Letter of Credit fees, and all other fees payable
hereunder shall be due and payable, in arrears, on the first day of each month
at any time that Obligations or Commitments are outstanding. Borrower hereby
authorizes Agent, from time to time without prior notice to Borrower, to charge
all interest and fees (when due and payable), all Lender Group Expenses (as and
when incurred), all charges, commissions, fees, and costs provided for in
SECTION 2.11(E) (as and when accrued or incurred), all fees and costs provided
for in SECTION 2.10 (as and when accrued or incurred), and all other payments as
and when due and payable under any Loan Document (including any amounts due and
payable to the Bank Product Providers in respect of Bank Products up to the
amount of the Bank Product Reserve) to the Loan Account, which amounts
thereafter shall constitute Advances hereunder and shall accrue interest at the
rate then applicable to Advances that are Base Rate Loans. Any interest not paid
when due shall be compounded by being charged to the Loan Account and
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shall thereafter constitute Advances hereunder and shall accrue interest at the
rate then applicable to Advances that are Base Rate Loans.
(e) COMPUTATION. All interest and fees chargeable under the Loan
Documents shall be computed on the basis of a 360 day year, in each case, for
the actual number of days elapsed in the period during which the interest or
fees accrue. In the event the Base Rate is changed from time to time hereafter,
the rates of interest hereunder based upon the Base Rate automatically and
immediately shall be increased or decreased by an amount equal to such change in
the Base Rate.
(f) INTENT TO LIMIT CHARGES TO MAXIMUM LAWFUL RATE. In no event
shall the interest rate or rates payable under this Agreement, plus any other
amounts paid in connection herewith, exceed the highest rate permissible under
any law that a court of competent jurisdiction shall, in a final determination,
deem applicable. Borrower and the Lender Group, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and manner
of payment stated within it; PROVIDED, HOWEVER, that, anything contained herein
to the contrary notwithstanding, if said rate or rates of interest or manner of
payment exceeds the maximum allowable under applicable law, then, IPSO FACTO, as
of the date of this Agreement, Borrower is and shall be liable only for the
payment of such maximum as allowed by law, and payment received from Borrower in
excess of such legal maximum, whenever received, shall be applied to reduce the
principal balance of the Obligations to the extent of such excess.
2.7 CREDITING PAYMENTS. The receipt of any payment item by Agent shall
not be considered a payment on account unless such payment item is a wire
transfer of immediately available federal funds made to the Agent's Account or
unless and until such payment item is honored when presented for payment. Should
any payment item not be honored when presented for payment, then Borrower shall
be deemed not to have made such payment and interest shall be calculated
accordingly. Anything to the contrary contained herein notwithstanding, any
payment item shall be deemed received by Agent only if it is received into the
Agent's Account on a Business Day on or before 11:00 a.m. (California time). If
any payment item is received into the Agent's Account on a non-Business Day or
after 11:00 a.m. (California time) on a Business Day, it shall be deemed to have
been received by Agent as of the opening of business on the immediately
following Business Day.
2.8 DESIGNATED ACCOUNT. Agent is authorized to make the Advances and
Issuing Lender is authorized to issue the Letters of Credit, under this
Agreement based upon telephonic or other instructions received from anyone
purporting to be an Authorized Person or, without instructions, if pursuant to
SECTION 2.6(D). Borrower agrees to establish and maintain the Designated Account
with the Designated Account Bank for the purpose of receiving the proceeds of
the Advances requested by Borrower and made by Agent or the Lenders hereunder.
Unless otherwise agreed by Agent and Borrower, any Advance, Protective Advance,
or Swing Loan requested by Borrower and made by Agent or the Lenders hereunder
shall be made to the Designated Account.
2.9 MAINTENANCE OF LOAN ACCOUNT; STATEMENTS OF OBLIGATIONS. Agent shall
maintain an account on its books in the name of Borrower (the "LOAN ACCOUNT") on
which Borrower will be charged with all Advances (including Protective Advances
and Swing Loans) made by Agent, Swing Lender, or the Lenders to Borrower or for
Borrower's account, the Letters of Credit issued by Issuing Lender for
Borrower's account, and with all other payment Obligations hereunder or under
the other Loan Documents (except for Bank Product Obligations), including,
accrued interest, fees and expenses, and Lender Group Expenses. In accordance
with SECTION 2.7, the Loan Account will be credited with all payments received
by Agent from Borrower or for Borrower's account. Agent shall render statements
regarding the Loan Account to Borrower, including principal, interest, fees, and
including an itemization of all charges and expenses constituting Lender Group
Expenses owing, and such statements, absent manifest error, shall be
conclusively presumed to be correct and accurate and constitute an account
stated between Borrower and the Lender Group unless, within 30 days after
receipt thereof by Borrower, Borrower shall deliver to Agent written objection
thereto describing the error or errors contained in any such statements.
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2.10 FEES. Borrower shall pay to Agent,
(a) for the account of Agent, as and when due and payable under the
terms of the Fee Letter, the fees set forth in the Fee Letter.
(b) for the ratable account of those Lenders with Revolver
Commitments, on the first day of each month from and after the Closing Date up
to the first day of the month prior to the Payoff Date and on the Payoff Date,
an unused line fee in an amount equal to 0.50% per annum times the result of (i)
the Maximum Revolver Amount, less (ii) the average Daily Balance of the Revolver
Usage during the immediately preceding month (or portion thereof).
2.11 LETTERS OF CREDIT.
(a) Subject to the terms and conditions of this Agreement, the
Issuing Lender agrees to issue letters of credit for the account of Borrower
(each, an "L/C") or to purchase participations or execute indemnities,
guarantees, or reimbursement obligations (each such undertaking, an "L/C
UNDERTAKING") with respect to letters of credit issued by an Underlying Issuer
(as of the Closing Date, the prospective Underlying Issuer is to be Xxxxx Fargo)
for the account of Borrower. Each request for the issuance of a Letter of
Credit, or the amendment, renewal, or extension of any outstanding Letter of
Credit, shall be made in writing by an Authorized Person and delivered to the
Issuing Lender and Agent via hand delivery, telefacsimile, or other electronic
method of transmission reasonably in advance of the requested date of issuance,
amendment, renewal, or extension. Each such request shall be in form and
substance reasonably satisfactory to the Issuing Lender in its Permitted
Discretion and shall specify (i) the amount of such Letter of Credit, (ii) the
date of issuance, amendment, renewal, or extension of such Letter of Credit,
(iii) the expiration date of such Letter of Credit (which shall not be after the
earlier of (x) one year after the date of issuance; PROVIDED, HOWEVER that any
Letter of Credit may provide for the renewal thereof or (y) five (5) Business
Days prior to the Maturity Date), (iv) the name and address of the beneficiary
thereof (or the beneficiary of the Underlying Letter of Credit, as applicable),
and (v) such other information (including, in the case of an amendment, renewal,
or extension, identification of the outstanding Letter of Credit to be so
amended, renewed, or extended) as shall be necessary to prepare, amend, renew,
or extend such Letter of Credit. Anything contained herein to the contrary
notwithstanding, the Issuing Lender may, but shall not be obligated to issue a
Letter of Credit that supports the obligations of a Loan Party or its
Subsidiaries in respect of (1) a lease of Real Property (other than that certain
Letter of Credit # SM23124W in the amount of $78,000 issued by Wachovia Bank on
May 19, 2008 with an expiry date of May 31, 2009), or (2) an employment
contract. If requested by the Issuing Lender, Borrower also shall be an
applicant under the application with respect to any Underlying Letter of Credit
that is to be the subject of an L/C Undertaking. The Issuing Lender shall have
no obligation to issue a Letter of Credit if any of the following would result
after giving effect to the issuance of such requested Letter of Credit:
(i) the Letter of Credit Usage would exceed $15,000,000, or
(ii) the Letter of Credit Usage would exceed the Maximum
Revolver Amount LESS the sum of (A) the Bank Product Reserve, and (B) the
outstanding amount of Advances.
Borrower and the Lender Group acknowledge and agree that certain
Underlying Letters of Credit may be issued to support letters of credit that
already are outstanding as of the Closing Date. Each Letter of Credit (and
corresponding Underlying Letter of Credit) shall be in form and substance
acceptable to the Issuing Lender (in the exercise of its Permitted Discretion),
including the requirement that the amounts payable thereunder must be payable in
Dollars. If Issuing Lender is obligated to advance funds under a Letter of
Credit, Borrower shall reimburse such L/C Disbursement to Issuing Lender by
paying to Agent an amount equal to such L/C Disbursement not later than 11:00
a.m., California time, on the date that such L/C Disbursement is made, if
Borrower shall have received written or telephonic notice of such L/C
Disbursement prior to 10:00 a.m., California time, on such date, or, if such
notice has not been received by Borrower prior to such time on such date, then
not later than 11:00 a.m., California time, on the Business Day that Borrower
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receives such notice, if such notice is received prior to 10:00 a.m., California
time, on the date of receipt, and, in the absence of such reimbursement, the L/C
Disbursement immediately and automatically shall be deemed to be an Advance
hereunder and, initially, shall bear interest at the rate then applicable to
Advances that are Base Rate Loans. To the extent an L/C Disbursement is deemed
to be an Advance hereunder, Borrower's obligation to reimburse such L/C
Disbursement shall be discharged and replaced by the resulting Advance. Promptly
following receipt by Agent of any payment from Borrower pursuant to this
paragraph, Agent shall distribute such payment to the Issuing Lender or, to the
extent that Lenders have made payments pursuant to SECTION 2.11(B) to reimburse
the Issuing Lender, then to such Lenders and the Issuing Lender as their
interests may appear.
(b) Promptly following receipt of a notice of L/C Disbursement
pursuant to SECTION 2.11(A), each Lender with a Revolver Commitment agrees to
fund its Pro Rata Share of any Advance deemed made pursuant to the foregoing
subsection on the same terms and conditions as if Borrower had requested such
Advance and Agent shall promptly pay to Issuing Lender the amounts so received
by it from the Lenders. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Lender or the Lenders with Revolver
Commitments, the Issuing Lender shall be deemed to have granted to each Lender
with a Revolver Commitment, and each Lender with a Revolver Commitment shall be
deemed to have purchased, a participation in each Letter of Credit, in an amount
equal to its Pro Rata Share of the Risk Participation Liability of such Letter
of Credit, and each such Lender agrees to pay to Agent, for the account of the
Issuing Lender, such Lender's Pro Rata Share of any payments made by the Issuing
Lender under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender with a Revolver Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Lender,
such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender
and not reimbursed by Borrower on the date due as provided in SECTION 2.11(A),
or of any reimbursement payment required to be refunded to Borrower for any
reason. Each Lender with a Revolver Commitment acknowledges and agrees that its
obligation to deliver to Agent, for the account of the Issuing Lender, an amount
equal to its respective Pro Rata Share of each L/C Disbursement made by the
Issuing Lender pursuant to this SECTION 2.11(B) shall be absolute and
unconditional and such remittance shall be made notwithstanding the occurrence
or continuation of an Event of Default or Default or the failure to satisfy any
condition set forth in SECTION 3. If any such Lender fails to make available to
Agent the amount of such Lender's Pro Rata Share of each L/C Disbursement made
by the Issuing Lender in respect of such Letter of Credit as provided in this
Section, such Lender shall be deemed to be a Defaulting Lender and Agent (for
the account of the Issuing Lender) shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the Defaulting Lender
Rate until paid in full.
(c) Borrower hereby agrees to indemnify, save, defend, and hold the
Lender Group harmless from any loss, cost, expense, or liability, and reasonable
attorneys fees incurred by the Lender Group arising out of or in connection with
any Letter of Credit; PROVIDED, HOWEVER, that Borrower shall not be obligated
hereunder to indemnify for any loss, cost, expense, or liability to the extent
that it is caused by the gross negligence or willful misconduct of the Issuing
Lender or any other member of the Lender Group. Borrower agrees to be bound by
the Underlying Issuer's regulations and interpretations of any Underlying Letter
of Credit or by Issuing Lender's interpretations of any L/C issued by Issuing
Lender to or for Borrower's account, even though this interpretation may be
different from Borrower's own, and Borrower understands and agrees that the
Lender Group shall not be liable for any error, negligence, or mistake, whether
of omission or commission, in following Borrower's instructions or those
contained in the Letter of Credit or any modifications, amendments, or
supplements thereto. Borrower understands that the L/C Undertakings may require
Issuing Lender to indemnify the Underlying Issuer for certain costs or
liabilities arising out of claims by Borrower against such Underlying Issuer.
Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group
harmless with respect to any loss, cost, expense (including reasonable attorneys
fees), or liability incurred by the Lender Group under any L/C Undertaking as a
result of the Lender Group's indemnification of any Underlying Issuer; PROVIDED,
HOWEVER, that Borrower shall not be obligated hereunder to indemnify for any
loss, cost, expense, or liability to the extent that it is caused by the gross
negligence or
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willful misconduct of the Issuing Lender or any other member of
the Lender Group. Borrower hereby acknowledges and agrees that neither the
Lender Group nor the Issuing Lender shall be responsible for delays, errors, or
omissions resulting from the malfunction of equipment in connection with any
Letter of Credit.
(d) Borrower hereby authorizes and directs any Underlying Issuer to
deliver to the Issuing Lender all instruments, documents, and other writings and
property received by such Underlying Issuer pursuant to such Underlying Letter
of Credit and to accept and rely upon the Issuing Lender's instructions with
respect to all matters arising in connection with such Underlying Letter of
Credit and the related application.
(e) Any and all issuance charges, commissions, fees, and costs
incurred by the Issuing Lender relating to Underlying Letters of Credit shall be
Lender Group Expenses for purposes of this Agreement and shall be reimbursable
promptly, but in any event, within 1 Business Day by Borrower to Agent for the
account of the Issuing Lender; it being acknowledged and agreed by Borrower
that, as of the Closing Date, the issuance charge imposed by the prospective
Underlying Issuer is .825% per annum times the undrawn amount of each Underlying
Letter of Credit, that such issuance charge may be changed from time to time,
and that the Underlying Issuer also imposes a schedule of charges for
amendments, extensions, drawings, and renewals.
(f) If by reason of (i) any change after the Closing Date in any
applicable law, treaty, rule, or regulation or any change in the interpretation
or application thereof by any Governmental Authority, or (ii) compliance by the
Underlying Issuer or the Lender Group with any direction, request, or
requirement (irrespective of whether having the force of law) of any
Governmental Authority or monetary authority including, Regulation D of the
Federal Reserve Board as from time to time in effect (and any successor
thereto):
(i) any reserve, deposit, or similar requirement is or shall be
imposed or modified in respect of any Letter of Credit issued hereunder, or
(ii) there shall be imposed on the Underlying Issuer or the
Lender Group any other condition regarding any Underlying Letter of Credit or
any Letter of Credit issued pursuant hereto,
and the result of the foregoing is to increase, directly or indirectly, the cost
to the Lender Group of issuing, making, guaranteeing, or maintaining any Letter
of Credit or to reduce the amount receivable in respect thereof by the Lender
Group, then, and in any such case, Agent may, at any time within a reasonable
period after the additional cost is incurred or the amount received is reduced,
notify Borrower, and Borrower shall pay within 30 days after demand therefor,
such amounts as Agent may specify to be necessary to compensate the Lender Group
for such additional cost or reduced receipt, together with interest on such
amount from the date of such demand until payment in full thereof at the rate
then applicable to Base Rate Loans hereunder; PROVIDED that Borrower shall not
be required to compensate a Lender pursuant to this Section for any such amounts
incurred more than 180 days prior to the date that such Lender first demands
payment from Borrower of such amounts; PROVIDED FURTHER that if an event or
circumstance giving rise to such amounts is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof. The determination by Agent of any amount due pursuant to this Section,
as set forth in a certificate setting forth the calculation thereof in
reasonable detail, shall, in the absence of manifest or demonstrable error, be
final and conclusive and binding on all of the parties hereto.
2.12 LIBOR OPTION.
(a) INTEREST AND INTEREST PAYMENT DATES. In lieu of having interest
charged at the rate based upon the Base Rate, Borrower shall have the option
(the "LIBOR OPTION") to have interest on all or a portion of the Advances be
charged (whether at the time when made (unless otherwise provided herein), upon
conversion from a Base Rate Loan to a LIBOR Rate Loan, or upon continuation of a
LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of interest based upon the LIBOR
Rate. Interest on LIBOR Rate Loans shall be
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payable on the earliest of (i) the last day of the Interest Period applicable
thereto; (ii) the date on which all or any portion of the Obligations are
accelerated pursuant to the terms hereof, or (iii) the date on which this
Agreement is terminated pursuant to the terms hereof. On the last day of each
applicable Interest Period, unless Borrower properly has exercised the LIBOR
Option with respect thereto, the interest rate applicable to such LIBOR Rate
Loan automatically shall convert to the rate of interest then applicable to Base
Rate Loans of the same type hereunder. At any time that an Event of Default has
occurred and is continuing, Borrower no longer shall have the option to request
that Advances bear interest at a rate based upon the LIBOR Rate.
(b) LIBOR ELECTION.
(i) Borrower may, at any time and from time to time, so long as
no Event of Default has occurred and is continuing, elect to exercise the LIBOR
Option by notifying Agent prior to 11:00 a.m. (California time) at least 3
Business Days prior to the commencement of the proposed Interest Period (the
"LIBOR DEADLINE"). Notice of Borrower's election of the LIBOR Option for a
permitted portion of the Advances and an Interest Period pursuant to this
Section shall be made by delivery to Agent of a LIBOR Notice received by Agent
before the LIBOR Deadline, or by telephonic notice received by Agent before the
LIBOR Deadline (to be confirmed by delivery to Agent of a LIBOR Notice received
by Agent prior to 5:00 p.m. (California time) on the same day). Promptly upon
its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to
each of the affected Lenders.
(ii) Each LIBOR Notice shall be irrevocable and binding on
Borrower. In connection with each LIBOR Rate Loan, Borrower shall indemnify,
defend, and hold Agent and the Lenders harmless against any loss, cost, or
expense actually incurred by Agent or any Lender as a result of (A) the payment
of any principal of any LIBOR Rate Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (B) the conversion of any LIBOR Rate Loan other than on the last day
of the Interest Period applicable thereto, or (C) the failure to borrow,
convert, continue or prepay any LIBOR Rate Loan on the date specified in any
LIBOR Notice delivered pursuant hereto (such losses, costs, or expenses,
"FUNDING LOSSES"). A certificate of Agent or a Lender delivered to Borrower
setting forth in reasonable detail any amount or amounts that Agent or such
Lender is entitled to receive pursuant to this SECTION 2.12 shall be conclusive
absent manifest error. Borrower shall pay such amount to Agent or the Lender, as
applicable, within 30 days of the date of its receipt of such certificate. If a
payment of a LIBOR Rate Loan on a day other than the last day of the applicable
Interest Period would result in a Funding Loss, Agent may, in its sole
discretion at the request of Borrower, hold the amount of such payment as cash
collateral in support of the Obligations until the last day of such Interest
Period and apply such amounts to the payment of the applicable LIBOR Rate Loan
on such last day, it being agreed that Agent has no obligation to so defer the
application of payments to any LIBOR Rate Loan and that, in the event that Agent
does not defer such application, Borrower shall be obligated to pay any
resulting Funding Losses.
(iii) Borrower shall have not more than 5 LIBOR Rate Loans in
effect at any given time. Borrower only may exercise the LIBOR Option for LIBOR
Rate Loans of at LEAST $1,000,000.
(c) CONVERSION. Borrower may convert LIBOR Rate Loans to Base Rate
Loans at any time; PROVIDED, HOWEVER, that in the event that LIBOR Rate Loans
are converted or prepaid on any date that is not the last day of the Interest
Period applicable thereto, including as a result of any automatic prepayment
through the required application by Agent of proceeds of Borrower's and its
Subsidiaries' Collections in accordance with SECTION 2.4(B) or for any other
reason, including early termination of the term of this Agreement or
acceleration of all or any portion of the Obligations pursuant to the terms
hereof, Borrower shall indemnify, defend, and hold Agent and the Lenders and
their Participants harmless against any and all Funding Losses in accordance
with SECTION 2.12 (B)(II) above.
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(d) SPECIAL PROVISIONS APPLICABLE TO LIBOR RATE.
(i) The LIBOR Rate may be adjusted by Agent with respect to any
Lender on a prospective basis to take into account any additional or increased
costs to such Lender of maintaining or obtaining any eurodollar deposits or
increased costs, in each case, due to changes in applicable law occurring
subsequent to the commencement of the then applicable Interest Period, including
changes in tax laws (except changes of general applicability in corporate income
tax laws) and changes in the reserve requirements imposed by the Board of
Governors of the Federal Reserve System (or any successor), excluding the
Reserve Percentage, which additional or increased costs would increase the cost
of funding or maintaining loans bearing interest at the LIBOR Rate. In any such
event, the affected Lender shall give Borrower and Agent notice of such a
determination and adjustment and Agent promptly shall transmit the notice to
each other Lender and, upon its receipt of the notice from the affected Lender,
Borrower may, by notice to such affected Lender (y) require such Lender to
furnish to Borrower a statement setting forth the basis for adjusting such LIBOR
Rate and the method for determining the amount of such adjustment, or (z) repay
the LIBOR Rate Loans with respect to which such adjustment is made (together
with any amounts due under SECTION 2.12(B)(II)).
(ii) In the event that any change in market conditions or any
law, regulation, treaty, or directive, or any change therein or in the
interpretation or application thereof, shall at any time after the date hereof,
in the reasonable opinion of any Lender, make it unlawful or impractical for
such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or
maintaining, or to determine or charge interest rates at the LIBOR Rate, such
Lender shall give notice of such changed circumstances to Agent and Borrower and
Agent promptly shall transmit the notice to each other Lender and (y) in the
case of any LIBOR Rate Loans of such Lender that are outstanding, the date
specified in such Lender's notice shall be deemed to be the last day of the
Interest Period of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans
of such Lender thereafter shall accrue interest at the rate then applicable to
Base Rate Loans, and (z) Borrower shall not be entitled to elect the LIBOR
Option until such Lender determines that it would no longer be unlawful or
impractical to do so. Notwithstanding the foregoing, to the extent a
determination by a Lender as described above relates to a LIBOR Rate Loan then
being requested by the Borrower pursuant to a notice of Borrower's election of
the LIBOR Option, the Borrower shall have the option, subject to the provisions
of SECTION 2.12(B)(II), to rescind such notice of Borrower's election of the
LIBOR Option as to all Lenders by giving notice (by telecopy or by telephone
confirmed in writing) to the Agent of such rescission on the date on which the
affected Lender gives notice of its determination as described above (which
notice of rescission the Agent shall promptly transmit to each other Lender).
(e) NO REQUIREMENT OF MATCHED FUNDING. Anything to the contrary
contained herein notwithstanding, neither Agent, nor any Lender, nor any of
their Participants, is required actually to acquire eurodollar deposits to fund
or otherwise match fund any Obligation as to which interest accrues at the LIBOR
Rate.
2.13 CAPITAL REQUIREMENTS.
(a) If, after the date hereof, any Lender determines that (i) the
adoption of or change in any law, rule, regulation or guideline regarding
capital requirements for banks or bank holding companies, or any change in the
interpretation or application thereof by any Governmental Authority charged with
the administration thereof, or (ii) compliance by such Lender or its parent bank
holding company with any guideline, request or directive of any such entity
regarding capital adequacy (whether or not having the force of law), has the
effect of reducing the return on such Lender's or such holding company's capital
as a consequence of such Lender's Commitments hereunder to a level below that
which such Lender or such holding company could have achieved but for such
adoption, change, or compliance (taking into consideration such Lender's or such
holding company's then existing policies with respect to capital adequacy and
assuming the full utilization of such entity's capital) by any amount deemed by
such Lender to be material, then such Lender may notify Borrower and Agent
thereof. Following receipt of such notice, Borrower agrees to pay
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such Lender on demand the amount of such reduction of return of capital as and
when such reduction is determined, payable within 30 days after presentation by
such Lender of a statement in the amount and setting forth in reasonable detail
such Lender's calculation thereof and the assumptions upon which such
calculation was based (which statement shall be deemed true and correct absent
manifest error). In determining such amount, such Lender may use any reasonable
averaging and attribution methods. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation; PROVIDED that Borrower shall
not be required to compensate a Lender pursuant to this Section for any
reductions in return incurred more than 180 days prior to the date that such
Lender notifies Borrower of such law, rule, regulation or guideline giving rise
to such reductions and of such Lender's intention to claim compensation
therefor; PROVIDED FURTHER that if such claim arises by reason of the adoption
of or change in any law, rule, regulation or guideline that is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(b) If any Lender requests additional or increased costs referred
to in SECTION 2.11(F), SECTION 2.12(D)(I) or amounts under SECTION 2.13(A) (any
such Lender, a "AFFECTED LENDER"), then such Affected Lender shall use
reasonable efforts to promptly designate a different one of its lending offices
or to assign its rights and obligations hereunder to another of its offices or
branches, if (i) in the reasonable judgment of such Affected Lender, such
designation or assignment would eliminate or reduce amounts payable pursuant to
SECTION 2.11(F), SECTION 2.12(D)(I) or SECTION 2.13(A), as applicable, and (ii)
in the reasonable judgment of such Affected Lender, such designation or
assignment would not subject it to any material unreimbursed cost or expense and
would not otherwise be materially disadvantageous to it. Borrower agrees to pay
all reasonable out-of-pocket costs and expenses incurred by such Affected Lender
in connection with any such designation or assignment. If, after such reasonable
efforts, such Affected Lender does not so designate a different one of its
lending offices or assign its rights to another of its offices or branches so as
to eliminate Borrower's obligation to pay any future amounts to such Affected
Lender pursuant to SECTION 2.11(F), SECTION 2.12(D)(I) or SECTION 2.13(A), as
applicable, then Borrower (without prejudice to any amounts then due to such
Affected Lender under SECTION 2.11(F), SECTION 2.12(D)(I) or SECTION 2.13(A), as
applicable) may, unless prior to the effective date of any such assignment the
Affected Lender withdraws its request for such additional amounts under SECTION
2.11(F), SECTION 2.12(D)(I) or SECTION 2.13(A), as applicable, designate another
Lender reasonably acceptable to Agent to purchase the Obligations owed to such
Affected Lender and such Affected Lender's Commitments hereunder (a "REPLACEMENT
LENDER"), such Affected Lender shall assign to the Replacement Lender its
Obligations and Commitments, pursuant to an Assignment and Acceptance Agreement,
and upon such purchase by the Replacement Lender, such Replacement Lender shall
be deemed to be a "Lender" for purposes of this Agreement and such Affected
Lender shall cease to be a "Lender" for purposes of this Agreement.
3. CONDITIONS; TERM OF AGREEMENT.
3.1 CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT. The
obligation of each Lender to make its initial extension of credit provided for
hereunder, is subject to the fulfillment, to the satisfaction of Agent and each
Lender of each of the conditions precedent set forth on SCHEDULE 3.1 (the making
of such initial extension of credit by a Lender being conclusively deemed to be
its satisfaction or waiver of the conditions precedent ).
3.2 CONDITIONS PRECEDENT TO ALL EXTENSIONS OF CREDIT. The obligation of
the Lender Group (or any member thereof) to make any Advances hereunder (or to
extend any other credit hereunder) at any time shall be subject to the following
conditions precedent:
(a) the representations and warranties of Parent or its Subsidiaries
contained in this Agreement or in the other Loan Documents shall be true and
correct in all material respects (except that such materiality qualifier shall
not be applicable to any representations and warranties that already are
qualified or modified by materiality in the text thereof) on and as of the date
of such extension of credit, as though made on
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and as of such date (except to the extent that such representations and
warranties relate solely to an earlier date); and
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such extension of credit, nor shall either result from
the making thereof.
3.3 TERM. This Agreement shall continue in full force and effect for a
term ending on February 28, 2013 (the "MATURITY DATE"). The foregoing
notwithstanding, the Lender Group, upon the election of the Required Lenders,
shall have the right to terminate its obligations under this Agreement
immediately and without notice upon the occurrence and during the continuation
of an Event of Default.
3.4 EFFECT OF TERMINATION. On the date of termination of this Agreement,
all Obligations (including contingent reimbursement obligations of Borrower with
respect to outstanding Letters of Credit and including all Bank Product
Obligations) immediately shall become due and payable without notice or demand
(including the requirement that Borrower provide (a) Letter of Credit
Collateralization, and (b) Bank Product Collateralization). No termination of
this Agreement, however, shall relieve or discharge Parent or its Subsidiaries
of their duties, Obligations, or covenants hereunder or under any other Loan
Document and the Agent's Liens in the Collateral shall remain in effect until
all Obligations have been paid in full and the Lender Group's obligations to
provide additional credit hereunder have been terminated. When this Agreement
has been terminated and all of the Obligations have been paid in full and the
Lender Group's obligations to provide additional credit under the Loan Documents
have been terminated irrevocably, Agent will, at Borrower's sole expense,
execute and deliver any termination statements, lien releases, mortgage
releases, re-assignments of trademarks, discharges of security interests, and
other similar discharge or release documents (and, if applicable, in recordable
form) as are reasonably necessary to release, as of record, the Agent's Liens
and all notices of security interests and liens previously filed by Agent with
respect to the Obligations.
3.5 EARLY TERMINATION BY BORROWER. Borrower has the option, at any time
upon 10 Business Days prior written notice to Agent, to terminate this Agreement
and terminate the Commitments hereunder by paying to Agent the Obligations
(including (a) providing Letter of Credit Collateralization with respect to the
then existing Letter of Credit Usage, and (b) providing Bank Product
Collateralization with respect to the then existing Bank Products), in full.
4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender Group to enter into this Agreement,
each of Parent and Borrower makes the following representations and warranties
to the Lender Group which shall be true, correct, and complete, in all material
respects, as of the date hereof, and shall be true, correct, and complete, in
all material respects, as of the Closing Date and at and as of the date of the
making of each Advance (or other extension of credit) made thereafter, as though
made on and as of the date of such Advance (or other extension of credit)
(except to the extent that such representations and warranties relate solely to
an earlier date) and such representations and warranties shall survive the
execution and delivery of this Agreement:
4.1 DUE ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
(a) Each Loan Party (i) is duly organized and existing and in good
standing under the laws of the jurisdiction of its organization, (ii) qualified
to do business in any state where the failure to be so qualified reasonably
could be expected to result in a Material Adverse Change, and (iii) has all
requisite power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into the
Loan Documents to which it is a party and to carry out the transactions
contemplated thereby.
(b) Set forth on SCHEDULE 4.1(B) is a complete and accurate
description of the authorized capital Stock of Parent, by class, and, as of the
Closing Date, a description of the number of shares of each
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such class that are issued and outstanding. Other than as described on SCHEDULE
4.1(B), there are no subscriptions, options, warrants, or calls relating to any
shares of Parent's capital Stock, including any right of conversion or exchange
under any outstanding security or other instrument. Parent is not subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its capital Stock or any security convertible into or
exchangeable for any of its capital Stock.
(c) Set forth on SCHEDULE 4.1(C) (as such Schedule may be updated
from time to time to reflect changes permitted to be made under SECTION 5.11),
is a complete and accurate list of the Loan Parties' direct and indirect
Subsidiaries, showing: (i) the number of shares of each class of common and
preferred Stock authorized for each of such Subsidiaries, and (ii) the number
and the percentage of the outstanding shares of each such class owned directly
or indirectly by Parent. All of the outstanding capital Stock of each such
Subsidiary has been validly issued and is fully paid and non-assessable.
(d) Except as set forth on SCHEDULE 4.1(C), there are no
subscriptions, options, warrants, or calls relating to any shares of Parent's
Subsidiaries' capital Stock, including any right of conversion or exchange under
any outstanding security or other instrument. Neither Parent nor any of its
Subsidiaries is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of Parent's Subsidiaries'
capital Stock or any security convertible into or exchangeable for any such
capital Stock.
4.2 DUE AUTHORIZATION; NO CONFLICT.
(a) As to each Loan Party, the execution, delivery, and performance
by such Loan Party of the Loan Documents to which it is a party have been duly
authorized by all necessary action on the part of such Loan Party.
(b) As to each Loan Party, the execution, delivery, and performance
by such Loan Party of the Loan Documents to which it is a party do not and will
not (i) violate any material provision of federal, state, or local law or
regulation applicable to any Loan Party or its Subsidiaries, the Governing
Documents of any Loan Party or its Subsidiaries, or any order, judgment, or
decree of any court or other Governmental Authority binding on any Loan Party or
its Subsidiaries, (ii) conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under any Material Contract of
any Loan Party or its Subsidiaries except to the extent that any such conflict,
breach or default could not individually or in the aggregate reasonably be
expected to have a Material Adverse Change, (iii) result in or require the
creation or imposition of any Lien of any nature whatsoever upon any assets of
any Loan Party, other than Permitted Liens, or (iv) require any approval of any
Loan Party's interestholders or any approval or consent of any Person under any
Material Contract of any Loan Party, other than consents or approvals that have
been obtained and that are still in force and effect and except, in the case of
Material Contracts, for consents or approvals, the failure to obtain could not
individually or in the aggregate reasonably be expected to cause a Material
Adverse Change.
(c) As to each Loan Party, at the time of initial incurrence
thereof, the incurrence of each Advance and the issuance or renewal of each
Letter of Credit (i) does not conflict with, result in a breach of, or
constitute a default under any Senior Secured Notes Document; and (ii) is
permitted under Section 4.09(c)(i) of the Senior Notes Indenture.
(d) As to each Loan Party, at the time of initial incurrence
thereof, the incurrence of each Advance and the issuance or renewal of each
Letter of Credit (i) does not conflict with, result in a breach of, or
constitute a default under any Junior Notes Document; and (ii) is permitted
under Section 4.09(c)(i) of the Junior Notes Indenture.
4.3 GOVERNMENTAL CONSENTS. The execution, delivery, and performance by
each Loan Party of the Loan Documents to which such Loan Party is a party and
the consummation of the transactions
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contemplated by the Loan Documents do not and will not require any registration
with, consent, or approval of, or notice to, or other action with or by, any
Governmental Authority, other than consents or approvals that have been obtained
and that are still in force and effect and except for filings and recordings
with respect to the Collateral to be made, or otherwise delivered to the Agent
for filing or recordation, as of the Closing Date.
4.4 BINDING OBLIGATIONS; PERFECTED LIENS.
(a) Each Loan Document has been duly executed and delivered by each
Loan Party that is a party thereto and is the legally valid and binding
obligation of such Loan Party, enforceable against such Loan Party in accordance
with its respective terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar
laws relating to or limiting creditors' rights generally.
(b) The Agent's Liens are validly created, perfected (other than (i)
in respect of motor vehicles and (ii) any Deposit Accounts and Securities
Accounts not subject to a Control Agreement as permitted by SECTION 6.11, and
subject only to the filing of financing statements and the recordation of the
Mortgages), and first priority Liens, subject only to Permitted Liens.
4.5 TITLE TO ASSETS; NO ENCUMBRANCES. Each of the Loan Parties and its
Subsidiaries has (i) good, sufficient and legal title to (in the case of fee
interests in Real Property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), and (iii) good and marketable
title to (in the case of all other personal property), all of their respective
assets reflected in their most recent financial statements delivered pursuant to
SECTION 5.1, in each case except for assets disposed of since the date of such
financial statements to the extent permitted hereby. All of such assets are free
and clear of Liens except for Permitted Liens.
4.6 JURISDICTION OF ORGANIZATION; LOCATION OF CHIEF EXECUTIVE OFFICE;
ORGANIZATIONAL IDENTIFICATION NUMBER; COMMERCIAL TORT CLAIMS.
(a) The name of (within the meaning of Section 9-503 of the Code)
and jurisdiction of organization of each Loan Party and each of its Subsidiaries
is set forth on SCHEDULE 4.6(A) (as such Schedule may be updated from time to
time to reflect changes permitted to be made under SECTION 6.5).
(b) The chief executive office of each Loan Party and each of its
Subsidiaries is located at the address indicated on SCHEDULE 4.6(B) (as such
Schedule may be updated from time to time to reflect changes permitted to be
made under SECTION 5.15).
(c) Each Loan Party's and each of its Subsidiaries' tax
identification numbers and organizational identification numbers, if any, are
identified on SCHEDULE 4.6(C) (as such Schedule may be updated from time to time
to reflect changes permitted to be made under SECTION 6.5).
(d) As of the Closing Date, no Loan Party and no Subsidiary of a
Loan Party holds any commercial tort claims except as set forth on SCHEDULE
4.6(D).
4.7 LITIGATION.
(a) There are no actions, suits, or proceedings pending or, to the
best knowledge of Borrower, threatened against a Loan Party or any of its
Subsidiaries that either individually or in the aggregate could reasonably be
expected to result in a Material Adverse Change.
(b) SCHEDULE 4.7(B) sets forth a complete and accurate description,
with respect to each of the actions, suits, or proceedings seeking non-monetary
relief or seeking payment of money in excess of $100,000 (except to the extent
fully covered by insurance (in excess of the Borrower's $100,000 insurance
deductible per claim) pursuant to which the insurer has accepted liability
therefor in writing) that, as of the
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Closing Date,, is pending or, to the best knowledge of Borrower, threatened
against a Loan Party or any of its Subsidiaries, of (i) the parties to such
actions, suits, or proceedings, (ii) the nature of the dispute that is the
subject of such actions, suits, or proceedings, (iii) the maximum amount of the
liability of Loan Parties and their Subsidiaries in connection with such
actions, suits, or proceedings, (iv) the status, as of the Closing Date, with
respect to such actions, suits, or proceedings, and (v) whether any liability of
the Loan Parties' and their Subsidiaries in connection with such actions, suits,
or proceedings is covered by insurance.
4.8 COMPLIANCE WITH LAWS. No Loan Party nor any of its Subsidiaries (a)
is in violation of any applicable laws, rules, regulations, executive orders, or
codes (including Environmental Laws) that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Change, or (b) is
subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Change.
4.9 NO MATERIAL ADVERSE CHANGE. All financial statements relating to the
Loan Parties and their Subsidiaries that have been delivered by Borrower to
Agent have been prepared in accordance with GAAP (except, in the case of
unaudited financial statements, for the lack of footnotes and being subject to
year-end audit adjustments) and present fairly in all material respects, the
Loan Parties' and their Subsidiaries' consolidated financial condition as of the
date thereof and results of operations for the period then ended. Since July 13
2008, no event, circumstance, or change has occurred that has or could
reasonably be expected to result in a Material Adverse Change with respect to
the Loan Parties and their Subsidiaries.
4.10 FRAUDULENT TRANSFER. Immediately following the making of the
initial Advances and Letters of Credit hereunder and the issuance of the Senior
Secured Notes, and after giving effect to the proceeds thereof,
(a) Each Loan Party is Solvent.
(b) No transfer of property is being made by any Loan Party and no obligation is
being incurred by any Loan Party in connection with the transactions
contemplated by this Agreement or the other Loan Documents with the intent to
hinder, delay, or defraud either present or future creditors of such Loan Party.
4.11 EMPLOYEE BENEFITS. No Loan Party, none of their Subsidiaries, nor
any of their ERISA Affiliates maintains or contributes to any Benefit Plan.
4.12 ENVIRONMENTAL CONDITION. Except as set forth on SCHEDULE 4.14, (a)
to Borrower's knowledge, no Loan Party's or its Subsidiaries' properties or
assets has ever been used by a Loan Party, its Subsidiaries, or by previous
owners or operators in the disposal of, or to produce, store, handle, treat,
release, or transport, any Hazardous Materials, where such disposal, production,
storage, handling, treatment, release or transport was in violation, in any
material respect, of any applicable Environmental Law, (b) to Borrower's
knowledge, no Loan Party's or its Subsidiaries' properties or assets has ever
been designated or identified in any manner pursuant to any environmental
protection statute as a Hazardous Materials disposal site, (c) no Loan Party nor
any of its Subsidiaries has received notice that a Lien arising under any
Environmental Law has attached to any revenues or to any Real Property owned or
operated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor any of
its Subsidiaries nor any of their respective facilities or operations is subject
to any outstanding written order, consent decree, or settlement agreement with
any Person relating to any Environmental Law or Environmental Liability that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Change.
4.13 INTELLECTUAL PROPERTY. Each Loan Party and its Subsidiaries own, or
hold licenses in, all trademarks, trade names, copyrights, patents, and licenses
that are necessary to the conduct of its business as
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currently conducted, and attached hereto as SCHEDULE 4.13 (as updated from time
to time) is a true, correct, and complete listing of all material trademarks,
trade names, copyrights, patents, and licenses as to which Parent or one of its
Subsidiaries is the owner or is an exclusive licensee; PROVIDED, HOWEVER, that
Borrower may amend SCHEDULE 4.13 to add additional intellectual property so long
as such amendment occurs by written notice to Agent as required by SECTION 5.2.
4.14 LEASES. Each Loan Party and its Subsidiaries enjoy peaceful and
undisturbed possession under all leases material to their business and to which
they are parties or under which they are operating, and, subject to Permitted
Protests, all of such material leases are valid and subsisting and no material
default by the applicable Loan Party or its Subsidiaries exists under any of
them.
4.15 DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS. Set forth on SCHEDULE
4.15 (as updated pursuant to the provisions of the Security Agreement from time
to time) is a listing of all of the Loan Parties' and their Subsidiaries'
Deposit Accounts and Securities Accounts, including, with respect to each bank
or securities intermediary (a) the name and address of such Person, and (b) the
account numbers of the Deposit Accounts or Securities Accounts maintained with
such Person.
4.16 COMPLETE DISCLOSURE. All factual information (taken as a whole)
furnished by or on behalf of a Loan Party or its Subsidiaries in writing to
Agent or any Lender (including all information contained in the Schedules hereto
or in the other Loan Documents) for purposes of or in connection with this
Agreement, the other Loan Documents, or any transaction contemplated herein or
therein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of a Loan Party or its Subsidiaries in writing to
Agent or any Lender will be, true and accurate, in all material respects, on the
date as of which such information is dated or certified and not incomplete by
omitting to state any fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided. On the Closing Date,
the Closing Date Projections represent, and as of the date on which any other
Projections are delivered to Agent, such additional Projections represent
Borrower's good faith estimate of the Loan Parties' and their Subsidiaries
future performance for the periods covered thereby based upon assumptions
believed by Borrower to be reasonable at the time of the delivery thereof to
Agent (it being understood that such projections and forecasts are subject to
uncertainties and contingencies, many of which are beyond the control of the
Loan Parties and their Subsidiaries and no assurances can be given that such
projections or forecasts will be realized and any differing in actual results
may be material).
4.17 MATERIAL CONTRACTS. Set forth on SCHEDULE 4.17 (as updated from
time to time) is a reasonably detailed description of the Material Contracts of
each Loan Party and its Subsidiaries; PROVIDED, HOWEVER, that Borrower may amend
SCHEDULE 4.17 to add additional Material Contracts so long as such amendment
occurs by written notice to Agent at the time that Parent provides its quarterly
financial statements pursuant to SECTION 5.1. Except for matters which, either
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Change, each Material Contract (other than those that have
expired at the end of their normal terms) (a) is in full force and effect and is
binding upon and enforceable against the applicable Loan Party or its Subsidiary
and, to the best of Borrower's knowledge, each other Person that is a party
thereto in accordance with its terms, (b) has not been otherwise amended or
modified (other than amendments or modifications permitted by SECTION 6.7(B)),
and (c) is not in default due to the action or inaction of the applicable Loan
Party or its Subsidiary.
4.18 PATRIOT ACT. To the extent applicable, each Loan Party is in
compliance, in all material respects, with the (a) Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the Untied
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (b) Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA Patriot Act of 2001) (the "PATRIOT ACT"). No part of
the proceeds of the loans made hereunder will be used, directly or indirectly,
for any payments to any governmental official or employee, political party,
official of a political party, candidate for
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political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
4.19 INDEBTEDNESS. Set forth on SCHEDULE 4.19 is a true and complete
list of all Indebtedness of each Loan Party and each of its Subsidiaries
outstanding immediately prior to the Closing Date that is to remain outstanding
after the Closing Date and such Schedule accurately sets forth the aggregate
principal amount of such Indebtedness as of the Closing Date.
4.20 PAYMENT OF TAXES. Except as otherwise permitted under SECTION 5.5,
all tax returns and reports of each Loan Party and its Subsidiaries required to
be filed by any of them have been timely filed, and all taxes shown on such tax
returns to be due and payable and all assessments, fees and other governmental
charges upon a Loan Party and its Subsidiaries and upon their respective assets,
income, businesses and franchises that are due and payable have been paid when
due and payable. Each Loan Party and each of its Subsidiaries have made adequate
provision in accordance with GAAP for all taxes not yet due and payable.
Borrower knows of no proposed tax assessment against a Loan Party or any of its
Subsidiaries that is not being actively contested by such Loan Party or such
Subsidiary diligently, in good faith, and by appropriate proceedings; PROVIDED
such reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor. No Loan Party
nor any of its Subsidiaries has ever been a party to any understanding or
arrangement constituting a "tax shelter" within the meaning of Section
6662(d)(2)(C)(iii) of the IRC or within the meaning of Section 6111(c) or
Section 6111(d) of the IRC as in effect immediately prior to the enactment of
the American Jobs Creation Act of 2004, or has ever "participated" in a
"reportable transaction" within the meaning of Treasury Regulation Section
1.6011-4, except as would not be reasonably expected to, individually or in the
aggregate, result in a Material Adverse Change.
4.21 MARGIN STOCK. No Loan Party nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the loans made to Borrower will be used to purchase or carry any
such Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of said Board of
Governors.
4.22 GOVERNMENTAL REGULATION. No Loan Party nor any of its Subsidiaries
is subject to regulation under the Federal Power Act or the Investment Company
Act of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render all or any
portion of the Obligations unenforceable. No Loan Party nor any of its
Subsidiaries is a "registered investment company" or a company "controlled" by a
"registered investment company" or a "principal underwriter" of a "registered
investment company" as such terms are defined in the Investment Company Act of
1940.
4.23 OFAC. No Loan Party nor any of its Subsidiaries is in violation of
any of the country or list based economic and trade sanctions administered and
enforced by OFAC. No Loan Party nor any of its Subsidiaries (a) is a Sanctioned
Person or a Sanctioned Entity, (b) has a more than 10% of its assets located in
Sanctioned Entities, or (c) derives more than 10% of its revenues from
investments in, or transactions with Sanctioned Persons or Sanctioned Entities.
The proceeds of any Advance will not be used to fund any operations in, finance
any investments or activities in, or make any payments to, a Sanctioned Person
or a Sanctioned Entity.
4.24 PARENT AS A HOLDING COMPANY. Parent is a holding company and does
not have any material liabilities (other than liabilities arising under the Loan
Documents, Parent's guaranty of the Senior Secured Notes, and the Junior Notes),
own any material assets (other than the Stock of Borrower) or engage in any
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operations or business (other than the ownership of Borrower and its
Subsidiaries and activities reasonably related thereto).
4.25 [INTENTIONALLY OMITTED]
4.26 OTHER DOCUMENTS.
(a) Borrower has delivered to Agent a complete and correct copy of
the Senior Secured Notes Documents, including all schedules and exhibits
thereto. The execution, delivery and performance of each of the Senior Secured
Notes Documents has been duly authorized by all necessary action on the part of
Borrower. Each Senior Secured Notes Document is the legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, in each case, except (i) as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting generally the enforcement of creditors' rights and (ii) the
availability of the remedy of specific performance or injunctive or other
equitable relief is subject to the discretion of the court before which any
proceeding therefor may be brought. Borrower is not in default in the
performance or compliance with any provisions thereof. All representations and
warranties made by Borrower in the Senior Secured Notes Documents and in the
certificates delivered in connection therewith are true and correct in all
material respects. To Borrower's knowledge, no other party's representations or
warranties in the Senior Secured Notes Documents contain any untrue statement of
a material fact or omit any fact necessary to make the statements therein not
misleading, in any case that could reasonably be expected to result in a
Material Adverse Change.
(b) Borrower has delivered to Agent a complete and correct copy of
the Junior Notes Documents, including all schedules and exhibits thereto. The
execution, delivery and performance of each of the Junior Notes Documents has
been duly authorized by all necessary action on the part of Borrower. Each
Junior Notes Document is the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, in each case, except
(i) as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting generally the
enforcement of creditors' rights and (ii) the availability of the remedy of
specific performance or injunctive or other equitable relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
Borrower is not in default in the performance or compliance with any provisions
thereof. All representations and warranties made by Borrower in the Junior Notes
Documents and in the certificates delivered in connection therewith are true and
correct in all material respects. To Borrower's knowledge, no other party's
representations or warranties in the Junior Notes Documents contain any untrue
statement of a material fact or omit any fact necessary to make the statements
therein not misleading, in any case that could reasonably be expected to result
in a Material Adverse Change.
4.27 LOCATION OF INVENTORY AND EQUIPMENT. The Inventory and Equipment
(other than vehicles or Equipment out for repair) of the Loan Parties and their
Subsidiaries are not stored with a bailee, warehouseman, or similar party and
are located only at, or in transit between, the locations identified on SCHEDULE
4.27 (as such Schedule may be updated pursuant to SECTION 5.15).
4.28 INVENTORY RECORDS. Each Loan Party keeps correct and accurate
records itemizing and describing the type, quality, and quantity of its and its
Subsidiaries' Inventory and the book value thereof.
5. AFFIRMATIVE COVENANTS.
Each of Parent and Borrower covenants and agrees that, until
termination of all of the Commitments and payment in full of the Obligations,
the Loan Parties shall and shall cause each of their Subsidiaries to comply with
each of the following:
5.1 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES. Deliver to Agent, with
copies to each Lender, each of the financial statements, reports, and other
items set forth on SCHEDULE 5.1 at the times specified
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therein. In addition, each of Parent and Borrower agrees that no Subsidiary of a
Loan Party will have a fiscal year different from that of Parent. In addition,
Parent agrees to maintain a system of accounting that enables Parent to produce
financial statements in accordance with GAAP.
5.2 COLLATERAL REPORTING. Provide Agent (and if so requested by Agent,
with copies for each Lender) with each of the reports set forth on SCHEDULE 5.2
at the times specified therein.
5.3 EXISTENCE. Except as otherwise permitted under SECTION 6.3, each
Loan Party to, and cause each of its Subsidiaries to, at all times preserve and
keep in full force and effect its existence (including being in good standing in
its jurisdiction of organization) and all rights and franchises, licenses and
permits material to its business; PROVIDED, HOWEVER, that no Loan Party or any
of its Subsidiaries shall be required to preserve any such right or franchise,
licenses or permits if such Person's board of directors (or similar governing
body) shall determine that the preservation thereof is no longer desirable in
the conduct of the business of such Person, and that the loss thereof is not
disadvantageous in any material respect to such Person or to the Lenders.
5.4 MAINTENANCE OF PROPERTIES. Maintain and preserve all of its assets
that are necessary or useful in the proper conduct of its business in good
working order and condition, ordinary wear, tear, and casualty excepted (and
except where the failure to do so could not reasonably be expected to result in
a Material Adverse Change), and Permitted Dispositions excepted, and comply with
the material provisions of all material leases to which it is a party as lessee,
so as to prevent the loss or forfeiture thereof, unless such provisions are the
subject of a Permitted Protest.
5.5 TAXES. Cause all assessments and taxes imposed, levied, or assessed
against any Loan Party or its Subsidiaries, or any of their respective assets or
in respect of any of its income, businesses, or franchises to be paid in full,
before delinquency or before the expiration of any extension period, except to
the extent that the validity of such assessment or tax shall be the subject of a
Permitted Protest and so long as, in the case of an assessment or tax that has
or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such assessment or tax. Parent will and will cause each of its
Subsidiaries to make timely payment or deposit of all tax payments and
withholding taxes required of it and them by applicable laws, including those
laws concerning F.I.C.A., F.U.T.A., state disability, and local, state, and
federal income taxes, and will, upon request, furnish Agent with proof
reasonably satisfactory to Agent indicating that Parent and its Subsidiaries
have made such payments or deposits.
5.6 INSURANCE. At Borrower's expense, maintain insurance respecting each
of the Loan Parties' and their Subsidiaries' assets wherever located, covering
loss or damage by fire, theft, explosion, and all other hazards and risks as
ordinarily are insured against by other Persons engaged in the same or similar
businesses. Borrower also shall maintain (with respect to each of the Loan
Parties and their Subsidiaries) business interruption, public liability, and
product liability insurance, as well as insurance against larceny, embezzlement,
and criminal misappropriation. All such policies of insurance shall be with
responsible and reputable insurance companies and in such amounts as is carried
generally in accordance with sound business practice by companies in similar
businesses similarly situated and located and in any event in amount, adequacy
and scope reasonably satisfactory to Agent. All property insurance policies
covering the Collateral are to be made payable to Agent for the benefit of Agent
and the Lenders, as their interests may appear, in case of loss, pursuant to a
standard loss payable endorsement with a standard non contributory "lender" or
"secured party" clause and are to contain such other provisions as Agent may
reasonably require to fully protect the Lenders' interest in the Collateral and
to any payments to be made under such policies. All certificates of insurance
are to be delivered to Agent, with the loss payable and additional insured
endorsement in favor of Agent and shall provide for not less than 30 days (10
days in the case of non-payment) prior written notice to Agent of the exercise
of any right of cancellation. If Borrower fails to maintain such insurance,
Agent may arrange for such insurance, but at Borrower's expense and without any
responsibility on Agent's part for obtaining the insurance, the solvency of the
insurance companies, the adequacy of the coverage, or the
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collection of claims. Borrower shall give Agent prompt notice of any loss
exceeding $250,000 covered by its casualty or business interruption insurance.
Upon the occurrence and during the continuance of an Event of Default, Agent
shall have the sole right to file claims under any insurance policies, to
receive, receipt and give acquittance for any payments that may be payable
thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.
5.7 INSPECTION. Permit Agent and each of its duly authorized
representatives or agents to visit any of its properties and inspect any of its
assets or books and records, to examine and make copies of its books and
records, and to discuss its affairs, finances, and accounts with, and to be
advised as to the same by, its officers and employees at such reasonable times
and intervals as Agent may designate and, so long as no Default or Event of
Default exists, with reasonable prior notice to Borrower and during normal
business hours.
5.8 COMPLIANCE WITH LAWS. Comply with the requirements of all applicable
laws, rules, regulations, and orders of any Governmental Authority, other than
laws, rules, regulations, and orders the non-compliance with which, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Change.
5.9 ENVIRONMENTAL.
(a) Keep any property either owned or operated by Parent or its
Subsidiaries free of any Environmental Liens or post bonds or other financial
assurances sufficient to satisfy the obligations or liability evidenced by such
Environmental Liens,
(b) comply, in all material respects, with Environmental Laws and
provide to Agent documentation of such compliance which Agent reasonably
requests,
(c) promptly notify Agent of any release of a Hazardous Material in
any reportable quantity from or onto property owned or operated by Parent or its
Subsidiaries and take any Remedial Actions required to xxxxx said release or
otherwise to come into compliance with applicable Environmental Law,
(d) promptly, but in any event within 5 Business Days of its receipt
thereof, provide Agent with written notice of any of the following: (i) notice
that an Environmental Lien has been filed against any of the real or personal
property of Parent or its Subsidiaries, (ii) commencement of any Environmental
Action or notice that an Environmental Action will be filed against Parent or
its Subsidiaries, and (iii) notice of a violation, citation, or other
administrative order which could reasonably be expected to result in a Material
Adverse Change, and
(e) undertake any remedial action required under any Environmental
Law in the event of (i) any violation of any Environmental Law or (ii) any
Release on any Real Property forming part of the Collateral or owned by any Loan
Party in violation of any Environmental Law; PROVIDED, HOWEVER, that no Loan
Party shall have any obligations under this paragraph (e) to the extent any of
them is prosecuting a defense or other legal challenge to any alleged liability
or requirement for any remedial action, or except where the failure to undertake
such remedial action will not result in a material adverse effect on the
condition, use, operation or value of such Real Property.
5.10 DISCLOSURE UPDATES. Promptly and in no event later than 5 Business
Days after obtaining knowledge thereof, notify Agent if any written information,
exhibit, or report furnished to the Lender Group contained, at the time it was
furnished, any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements contained therein not misleading
in light of the circumstances in which made. The foregoing to the contrary
notwithstanding, any notification pursuant to the foregoing provision will not
cure or remedy the effect of the prior untrue statement of a material fact or
omission of any material fact
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nor shall any such notification have the effect of amending or modifying this
Agreement or any of the Schedules hereto.
5.11 FORMATION OF SUBSIDIARIES. At the time that any Loan Party forms
any direct or indirect Subsidiary or acquires any direct or indirect Subsidiary
after the Closing Date, such Loan Party shall (a) as soon as possible after, and
in any event within 30 days of, such formation or acquisition cause any such new
Subsidiary to provide to Agent a joinder to the Guaranty and the Security
Agreement, together with such other security documents (including mortgages with
respect to any Real Property owned in fee of such new Subsidiary with a fair
market value of at least $500,000), as well as appropriate financing statements
(and with respect to all property subject to a mortgage, fixture filings), all
in form and substance reasonably satisfactory to Agent (including being
sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in
and to the assets of such newly formed or acquired Subsidiary); PROVIDED that
the Guaranty, the Security Agreement, and such other security documents shall
not be required to be provided to Agent with respect to any Subsidiary of Parent
that is a CFC if providing such documents would result in adverse tax
consequences or the costs to the Loan Parties of providing such Guaranty,
executing any security documents or perfecting the security interests created
thereby are unreasonably excessive (as determined by Agent in consultation with
Borrower) in relation to the benefits of Agent and the Lenders of the security
or guarantee afforded thereby, (b) within 10 days of such formation or
acquisition (or such later date as permitted by Agent in its sole discretion)
provide to Agent a pledge agreement and appropriate certificates and powers or
financing statements, hypothecating all of the direct or beneficial ownership
interest in such new Subsidiary reasonably satisfactory to Agent; PROVIDED that
(x) in the case of any first tier Subsidiary of a Loan Party that is a CFC, only
65% (or such greater percentage that, due to a change in applicable law after
the date hereof, (x) would not reasonably be expected to cause the undistributed
earnings of such CFC as determined for United States federal income tax purposes
to be treated as a deemed dividend to such Subsidiary's United States parent and
(y) would not reasonably be expected to cause any adverse tax consequences) of
the issued and outstanding shares of Stock entitled to vote shall be required to
be pledged, and (y) in the case of all other Subsidiaries that are CFCs, none of
the Stock shall be required to be pledged; PROVIDED, FURTHER that the pledge
agreement and such other documents shall not be required to be provided to Agent
if the costs to the Loan Parties of providing such pledge or perfecting the
security interests created thereby are unreasonably excessive (as determined by
Agent in consultation with the Borrower) in relation to the benefits of Agent
and the Lenders of the security or guarantee afforded thereby (which pledge, if
reasonably requested by Agent, shall be governed by the laws of the jurisdiction
of such Subsidiary), and (c) within 10 days of such formation or acquisition (or
such later date as permitted by Agent in its sole discretion) provide to Agent
all other documentation, including one or more opinions of counsel reasonably
satisfactory to Agent, which in its opinion is appropriate with respect to the
execution and delivery of the applicable documentation referred to above
(including policies of title insurance or other documentation with respect to
all Real Property owned in fee and subject to a mortgage). Any document,
agreement, or instrument executed or issued pursuant to this SECTION 5.11 shall
be a Loan Document.
5.12 FURTHER ASSURANCES. At any time upon the reasonable request of
Agent, execute or deliver to Agent any and all financing statements, fixture
filings, security agreements, pledges, assignments, endorsements of certificates
of title, mortgages, deeds of trust, opinions of counsel, and all other
documents (collectively, the "ADDITIONAL DOCUMENTS") that Agent may reasonably
request in form and substance reasonably satisfactory to Agent, to create,
perfect, and continue perfected or to better perfect the Agent's Liens in all of
the assets of Parent and its Subsidiaries (whether now owned or hereafter
arising or acquired, tangible or intangible, real or personal), to create and
perfect Liens in favor of Agent in any Real Property acquired by Parent or its
Subsidiaries after the Closing Date with a fair market value or purchase price
in excess of $500,000, and in order to fully consummate all of the transactions
contemplated hereby and under the other Loan Documents); PROVIDED that the
foregoing shall not apply to any Subsidiary of Parent that is a CFC if providing
such documents could reasonably be expected to result in adverse tax
consequences or the costs to the Loan Parties of providing such documents are
unreasonably excessive (as determined by Agent in consultation with Borrower) in
relating to the benefits of Agent and the Lenders of the benefits afforded
thereby. To the maximum extent permitted by applicable law, each of Parent and
Borrower authorizes Agent to execute any such Additional Documents in the
applicable Loan Party's or its Subsidiary's name, as
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applicable, and authorizes Agent to file such executed Additional Documents in
any appropriate filing office. In furtherance and not in limitation of the
foregoing, each Loan Party shall take such actions as Agent may reasonably
request from time to time to ensure that the Obligations are guarantied by the
Guarantors and are secured by substantially all of the assets of Parent and its
Subsidiaries and all of the outstanding Stock of Borrower and Borrower's
Subsidiaries (subject to limitations contained in the Credit Documents with
respect to Foreign Subsidiaries).
5.13 LENDER MEETINGS. Within 90 days after the close of each fiscal year
of Parent, at the request of Agent or of the Required Lenders and upon
reasonable prior notice, hold a meeting (at a mutually agreeable location and
time or, at the option of Agent, by conference call) with all Lenders who choose
to attend such meeting at which meeting shall be reviewed the financial results
of the previous fiscal year and the financial condition of Parent and its
Subsidiaries and the projections presented for the current fiscal year of
Parent.
5.14 MATERIAL CONTRACTS. Contemporaneously with the delivery of each
Compliance Certificate pursuant hereto, provide Agent with copies of (a) each
Material Contract entered into since the delivery of the previous Compliance
Certificate and an update to SECTION 4.17 to reflect such material contract, and
(b) each material amendment or modification of any Material Contract entered
into since the delivery of the previous Compliance Certificate.
5.15 LOCATION OF INVENTORY AND EQUIPMENT. Keep each Loan Parties' and
its Subsidiaries' Inventory and Equipment (other than vehicles and Equipment out
for repair) only at the locations identified on SCHEDULE 4.29 and their chief
executive offices only at the locations identified on SCHEDULE 4.6(B); PROVIDED,
HOWEVER, that Borrower may amend SCHEDULE 4.29 or SCHEDULE 4.6(B) so long as
such amendment occurs by written notice to Agent not less than 10 days prior to
the date on which such Inventory or Equipment is moved to such new location or
such chief executive office is relocated and so long as such new location is
within the continental United States, and so long as, at the time of such
written notification, Borrower provides Agent a Collateral Access Agreement with
respect thereto.
5.16 INDENTURES.
(a) At all times, maintain availability under Section 4.09(c)(i) of
the Senior Notes Indenture solely for the Advances and the Letters of Credit in
an amount equal to or greater than the Maximum Revolver Amount.
(b) At all times, maintain availability under Section 4.09(c)(i) of
the Junior Notes Indenture solely for the Advances and the Letters of Credit in
an amount equal to or greater than the Maximum Revolver Amount.
6. NEGATIVE COVENANTS.
Each of Parent and Borrower covenants and agrees that, until
termination of all of the Commitments and payment in full of the Obligations,
the Loan Parties will not and will not permit any of their Subsidiaries to do
any of the following:
6.1 INDEBTEDNESS. Create, incur, assume, suffer to exist, guarantee, or
otherwise become or remain, directly or indirectly, liable with respect to any
Indebtedness, except for Permitted Indebtedness.
6.2 LIENS. Create, incur, assume, or suffer to exist, directly or
indirectly, any Lien on or with respect to any of its assets, of any kind,
whether now owned or hereafter acquired, or any income or profits therefrom,
except for Permitted Liens.
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6.3 RESTRICTIONS ON FUNDAMENTAL CHANGES.
(a) Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassify its Stock, except for (i) any merger between
Loan Parties, PROVIDED that Borrower must be the surviving entity of any such
merger to which it is a party and no merger may occur between Parent and
Borrower, (ii) any merger between Loan Parties and Subsidiaries of Parent that
are not Loan Parties so long as such Loan Party is the surviving entity of any
such merger, and (iii) any merger between Subsidiaries of Parent that are not
Loan Parties,
(b) Liquidate, wind up, or dissolve itself (or suffer any
liquidation or dissolution), except for (i) the liquidation or dissolution of
non-operating Subsidiaries of Parent with nominal assets and nominal
liabilities, (ii) the liquidation or dissolution of a Loan Party (other than
Parent or Borrower) or any of its wholly-owned Subsidiaries so long as all of
the assets (including any interest in any Stock) of such liquidating or
dissolving Loan Party or Subsidiary are transferred to a Loan Party that is not
liquidating or dissolving, or (iii) the liquidation or dissolution of a
Subsidiary of Parent that is not a Loan Party so long as all of the assets of
such liquidating or dissolving Subsidiary are transferred to a Subsidiary of
Parent that is not liquidating or dissolving (and if the Stock of the
liquidating or dissolving Subsidiary is subject to a Lien in favor of the Agent,
the Stock of the Subsidiary to which the assets of the liquidating or dissolving
Subsidiary are transferred is subject to a Lien in favor of the Agent); or
(c) Suspend or go out of a substantial portion of its or their
business, except as permitted pursuant to clauses (a) or (b) above or in
connection with the transactions permitted pursuant to SECTION 6.4.
6.4 DISPOSAL OF ASSETS. Other than Permitted Dispositions, Permitted
Investments, or transactions expressly permitted by SECTIONS 6.3 and 6.11,
convey, sell, lease, license, assign, transfer, or otherwise dispose of (or
enter into an agreement to convey, sell, lease, license, assign, transfer, or
otherwise dispose of) any of Parent's or its Subsidiaries assets.
6.5 CHANGE NAME. Change Parent's or any of its Subsidiaries' name,
organizational identification number, state of organization or organizational
identity; PROVIDED, HOWEVER, that Parent or any of its Subsidiaries may change
their names upon at least 10 days prior written notice to Agent of such change.
6.6 NATURE OF BUSINESS. Make any change in the nature of its or their
business as described in SCHEDULE 6.6 or acquire any properties or assets that
are not reasonably related to the conduct of such business activities; PROVIDED
that Parent and its Subsidiaries may engage in any business that is reasonably
related or ancillary to its or their business.
6.7 PREPAYMENTS AND AMENDMENTS.
(a) Except in connection with Refinancing Indebtedness permitted by
SECTION 6.1,
(i) optionally prepay, redeem, defease, purchase, or otherwise
acquire any Indebtedness of Parent or its Subsidiaries, other than (i) the
Obligations in accordance with this Agreement, and (ii) Permitted Intercompany
Advances,
(ii) make any payment on account of Indebtedness that has been
contractually subordinated in right of payment to the Obligations if such
payment is not permitted at such time under the subordination terms and
conditions, or
(b) Directly or indirectly, amend, modify, or change any of the
terms or provisions of
(i) any agreement, instrument, document, indenture, or other
writing evidencing or concerning Indebtedness permitted under SECTION 6.1 other
than (A) the Obligations in accordance with this
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Agreement, (B) Permitted Intercompany Advances, (C) Indebtedness permitted under
CLAUSES (C), (H), (J) and (K) of the definition of Permitted Indebtedness, (D)
to the extent permitted by the Intercreditor Agreement, Indebtedness under the
Senior Secured Notes Documents, (E) any amendment to the Junior Notes Documents
that is necessary solely to achieve a Refinancing Indebtedness of the
Indebtedness under the Junior Notes Documents, or (F) any other agreement,
instrument, document, indenture, or other writing evidencing or concerning
Indebtedness permitted under SECTION 6.1 so long as the effect of such
amendment, modification or change does not (i) increase the rate of interest or
fees thereon or the principal amount outstanding thereunder, (ii) provide for an
earlier maturity date or date of any scheduled payment of principal or shorten
the average weighted maturity of or accelerate the amortization of, such
Indebtedness, (iii) add any event of default or eliminate or shorten any grace
period, or (iv) make any covenants materially more restrictive on any Loan
Party, taken as a whole, or can reasonably be expected to be materially adverse
to the interests of the Lenders,
(ii) any Material Contract except to the extent that such
amendment, modification, alteration, increase, or change could not, individually
or in the aggregate, reasonably be expected to be materially adverse to the
interests of the Lenders; or
(iii) the Governing Documents of any Loan Party or any of its
Subsidiaries if the effect thereof, either individually or in the aggregate,
could reasonably be expected to be materially adverse to the interests of the
Lenders.
6.8 CHANGE OF CONTROL. Cause, permit, or suffer, directly or indirectly,
any Change of Control.
6.9 DISTRIBUTIONS. Make any distribution or declare or pay any dividends
(in cash or other property, other than common Stock) on, or purchase, acquire,
redeem, or retire any of Borrower's Stock, of any class, whether now or
hereafter outstanding; PROVIDED, HOWEVER, that, so long as it is permitted by
applicable law,
(a) so long as (i) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, and (ii) the Loan Parties
have Excess Availability plus Qualified Cash of at least $5,000,000 immediately
before and after giving effect to the proposed distribution, Parent's
Subsidiaries may make distributions to Parent for the sole purpose of allowing
Parent to, and Parent shall use the proceeds thereof solely to (x) make
distributions to former employees, officers, or directors (or any spouses,
ex-spouses, or estates of any of the foregoing) on account of redemptions of
Stock of Parent held by such Persons, PROVIDED, HOWEVER, that the aggregate
amount of such redemptions and distributions pursuant to this SECTION 6.9(A)(X)
shall not exceed (A) for the fiscal year ending on or about December 31, 2008,
(x) in the case of Xxxxx Xxxxxxx, $296,000, and (y) in the case of Xxxxxxx
Xxxxxx, $175,000, and (B) for the fiscal year ending on or about December 31,
2009 and for each fiscal year thereafter, $225,000; and PROVIDED, FURTHER,
HOWEVER, that if the amount of the distributions permitted to be made in any
fiscal year is greater than the actual amount of the distributions actually made
in such fiscal year (such amount, the "CARRY-OVER AMOUNT"), then the Carry-Over
Amount may be carried forward to the next succeeding fiscal year and used in
such succeeding fiscal year solely if the terms and conditions set forth in this
SECTION 6.9(A) have been satisfied; PROVIDED FURTHER that the Carry-Over Amount
applicable to any particular succeeding fiscal year may not be used in that
fiscal year until the amount permitted above to be expended in such fiscal year
has first been used in full and the Carry-Over Amount applicable to a particular
succeeding fiscal year may not be carried forward to another fiscal year; and
(y) make distributions to former employees, officers, or directors (or any
spouses, ex-spouses, or estates of any of the foregoing), solely in the form of
forgiveness of Indebtedness of such Persons owing to Parent as of the Closing
Date on account of repurchases of the Stock of Parent held by such Persons so
long as such Indebtedness was incurred by such Persons solely to acquire Stock
of Parent;
(b) Parent's Subsidiaries may make distributions to Parent for
the sole purpose of allowing Parent to, and Parent shall use the proceeds
thereof solely to (i) pay federal and state income taxes and franchise taxes
solely arising out of the consolidated operations of Parent and its
Subsidiaries, after taking into account all available credits and deductions
(provided that neither Borrower nor any of its Subsidiaries
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shall make any distribution to Parent in any amount greater than the share of
such taxes arising out of Borrower's consolidated net income), and (ii) so long
as no Event of Default shall have occurred and be continuing or would result
therefrom, pay other reasonable administrative and maintenance expenses arising
solely out of the consolidated operations (including maintenance of existence)
of Parent and its Subsidiaries, in an aggregate amount not to exceed $225,000 in
any fiscal year;
(c) so long as (i) Parent is permitted to make the payments
permitted by SECTION 6.12(E), and (ii) so long as the Loan Parties have at least
$5,000,000 of Excess Availability plus Qualified Cash before and after giving
effect to such proposed dividend or distribution, Borrower or any of its
Subsidiaries may make dividends or distributions to Parent for the purpose of
permitting Parent to make such payments and Parent agrees to use the proceeds of
such dividends or distributions solely for such purpose; and
(d) distributions by any Subsidiary of Borrower to any Loan
Party (other than Parent).
6.10 ACCOUNTING METHODS. Modify or change its fiscal year or its method
of accounting (other than as may be required to conform to GAAP).
6.11 INVESTMENTS. Except for Permitted Investments, directly or
indirectly, make or acquire any Investment or incur any liabilities (including
contingent obligations) for or in connection with any Investment; PROVIDED,
HOWEVER, that (other than (a) an aggregate amount of not more than $250,000 at
any one time, in the case of Parent and its Subsidiaries (other than those that
are CFCs), (b) amounts deposited into Deposit Accounts specially and exclusively
used for payroll, payroll taxes and other employee wage and benefit payments to
or for Parent's or its Subsidiaries' employees, and (c) an aggregate amount of
not more than $100,000 (calculated at current exchange rates) at any one time,
in the case of Subsidiaries of Parent that are CFCs) Parent and its Subsidiaries
shall not have Permitted Investments consisting of cash, Cash Equivalents, or
amounts credited to Deposit Accounts or Securities Accounts unless Parent or its
Subsidiary, as applicable, and the applicable securities intermediary or bank
have entered into Control Agreements with Agent governing such Permitted
Investments in order to perfect (and further establish) the Agent's Liens in
such Permitted Investments. Subject to the foregoing proviso, Parent shall not
and shall not permit its Subsidiaries to establish or maintain any Deposit
Account or Securities Account unless Agent shall have received a Control
Agreement in respect of such Deposit Account or Securities Account.
6.12 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter into or
permit to exist any transaction with any Affiliate of Parent or any of its
Subsidiaries except for:
(a) transactions (other than the payment of management, consulting,
monitoring, or advisory fees) between Parent or its Subsidiaries, on the one
hand, and any Affiliate of Parent or its Subsidiaries, on the other hand, so
long as such transactions (i) are upon fair and reasonable terms, (ii) are fully
disclosed to Agent prior to the consummation thereof, if they involve one or
more payments by Parent or its Subsidiaries in excess of $250,000 for any single
transaction or series of related transactions, and (iii) are no less favorable,
taken as a whole, to Parent or its Subsidiaries, as applicable, than would be
obtained in an arm's length transaction with a non-Affiliate,
(b) so long as it has been approved by Parent's Board of Directors
in accordance with applicable law, any indemnity provided for the benefit of
directors of Parent,
(c) so long as it has been approved by Parent's Board of Directors,
the payment of reasonable fees, compensation, or employee benefit arrangements
to employees, officers, and outside directors of Parent in the ordinary course
of business and consistent with industry practice,
(d) transactions permitted by SECTION 6.3, SECTION 6.9 or SECTION
6.11 or any Permitted Intercompany Advance, and
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(e) the payment, pursuant to the Management Agreement, of (i)
management, consulting, monitoring, and advisory fees to Equity Sponsor or its
Affiliates in an aggregate amount not to exceed $895,000 in any fiscal quarter
of Parent, so long as (x) no Event of Default has occurred and is continuing or
would result therefrom, (y) after taking into account all such payments to be
made on any date, Parent and its Subsidiaries would have Excess Availability
plus Qualified Cash of at least $5,000,000, and (z) after taking into account
all such payments to be made on such date, the Consolidated Leverage Ratio (as
defined in the Senior Secured Notes Indenture as in effect on the Closing Date)
for the most recently ended period of four fiscal quarters for which financial
statements are available is less than 4.25 to 1.0; such Consolidated Leverage
Ratio in each case to be computed on a pro forma basis after giving effect to
all such payments of management, consulting, and advisory fees made or proposed
to be made since the end of the most recent fiscal quarter with respect to which
financial statements are available as well as the incurrence of any Indebtedness
incurred in connection therewith; PROVIDED, that if at any time any such
management, consulting, monitoring or advisory fees to Equity Sponsor or its
Affiliates are not permitted to be paid as a result of the failure to satisfy
any of the conditions set forth in SUBCLAUSES (X), (Y), or (Z) of this SECTION
6.12(E), then (1) such amounts shall continue to accrue, and (2) any such
amounts that have accrued but which were not permitted to be paid may be paid in
any subsequent quarter so long as each of the conditions set forth in SUBCLAUSES
(X), (Y), and (Z) of this SECTION 6.12(E) are satisfied at the time of the
making of such payments; PROVIDED, HOWEVER, that only $1,750,000 of accrued
management fees not paid in prior periods may be paid in cash over a trailing
four quarter period in addition to management fees permitted under the
Consolidated Leverage Ratio test and that all management fees, accrued and
current, shall be subject to a subordination agreement under which payment
thereof is expressly subordinated to the Obligations; and (ii) reasonable
out-of-pocket expenses pursuant to any financial advisory, financing,
underwriting, or placement agreement or in respect of other investment banking
activities, including in connection with acquisitions or divestitures that are
permitted by this Agreement in an aggregate amount not to exceed $400,000 in any
fiscal year of Parent.
6.13 USE OF PROCEEDS. Use the proceeds of the Advances for any purpose
other than (a) on the Closing Date, (i) to repay, in full, the outstanding
principal, accrued interest, and accrued fees and expenses owing to Existing
Lender, and (ii) to pay transactional fees, costs, and expenses incurred in
connection with this Agreement, the other Loan Documents, and the transactions
contemplated hereby and thereby, and (b) thereafter, consistent with the terms
and conditions hereof, for the general purposes of Parent and its Subsidiaries
and for other lawful and permitted purposes.
6.14 PARENT AS HOLDING COMPANY. Permit Parent to incur any liabilities
(other than liabilities arising under the Loan Documents, Parent's guaranty of
the Senior Secured Notes, and the Junior Notes), own or acquire any assets
(other than the Stock of Borrower) or engage itself in any operations or
business, except in connection with its ownership of Borrower and its rights and
obligations under the Loan Documents.
6.15 CHASKA COMMONS, MINNESOTA. The value of the property of the Loan
Parties and their Subsidiaries that is located at Chaska Commons Shopping
Center, 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx 00000 shall not exceed $1,000,000
in the aggregate at any time.
6.16 POST-CLOSING COVENANTS.
(a) Within 5 Business Days of the Closing Date, deliver to Agent,
in form and substance satisfactory to Agent, a newly issued stock certificate
for the Stock of Borrower;
(b) Within 10 days of the Closing Date, deliver to Agent, in form
and substance satisfactory to Agent, an amendment to the bylaws of Xxxxx
Xxxxxxxxx Pie Shops, Inc. with respect to Section 7 thereof;
(c) Within 45 days of the Closing Date, deliver to Agent, in form
and substance satisfactory to Agent, the following items:
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(i) evidence of release of all existing liens and security
interests granted in favor of BankBoston in connection with that certain
Revolving Credit Agreement, dated as of December 22, 2005, with respect to the
assets and property owned by the Loan Parties, including (A) that certain
Leasehold Deed of Trust, Security Agreement and Assignment of Leases, dated as
of February 10, 2000, between Xxxxx Xxxxxxxxx Ventures, Inc., as trustor,
Commonwealth Land Title Insurance Company, as trustee, for the benefit of
BankBoston, N.A., as agent for itself and other Banks (as defined therein), as
beneficiary, which was recorded on November 8, 2000 in the County of Orange,
California, (B) the recordation of releases of security interests with respect
to the Loan Parties' owned trademarks; and
(ii) Controlled Account Agreements in respect of all of the
Controlled Accounts (except as permitted by SECTION 6.16(D));
(d) Within 60 days of the Closing Date, deliver to Agent, in form
and substance satisfactory to Agent, evidence with respect to account number
8000375342 maintained by Regions Bank that such account has been closed and all
the funds held in such account have been transferred to either (A) a new
depository account maintained by Regions Bank subject to a Control Agreement, or
(B) account number 0082536732 maintained by Regions Bank subject to a Control
Agreement; and
(e) Within 60 days of the Closing Date, deliver to Agent, (i) in
form and substance satisfactory to Agent, Collateral Access Agreements with
respect to each chief executive office of each Loan Party; and (ii) either a
Collateral Access Agreement for each location at which any Loan Party operates a
manufacturing or distribution facility, or maintains a warehouse or evidence
satisfactory to Agent that the Loan Parties used commercially reasonable efforts
during such 60-day period in order to obtain a Collateral Access Agreement for
each location at which any Loan Party operates a manufacturing or distribution
facility, or maintains a warehouse but was not successful in securing such
Collateral Access Agreement; PROVIDED, HOWEVER, that this subsection (e)(ii)
shall not apply to locations at which less than $500,000 of Collateral is
located.
(f) Within 60 days of the Closing Date, deliver to Agent, in form and substance
satisfactory to Agent, the following items:
(ii) the Mortgages;
(iii) mortgagee title insurance policies (or marked
commitments to issue the same) for the Real Property Collateral issued by a
title insurance company satisfactory to Agent (each a "MORTGAGE POLICY" and,
collectively, the "MORTGAGE POLICIES") in amounts satisfactory to Agent assuring
Agent that the Mortgages on such Real Property Collateral are valid and
enforceable first priority mortgage Liens on such Real Property Collateral free
and clear of all defects and encumbrances except Permitted Liens, and the
Mortgage Policies otherwise shall be in form and substance satisfactory to
Agent;
(g) Within the period of time required by the Senior Notes
Indenture, deliver to Agent such other documentation or items required to be
delivered after the Closing Date pursuant to the Senior Notes Indenture.
7. FINANCIAL COVENANTS.
Each of Parent and Borrower covenants and agrees that, until termination
of all of the Commitments and payment in full of the Obligations, Parent will
comply with each of the following financial covenants:
(a) MINIMUM EBITDA. At all times achieve TTP EBITDA of at least
$30,000,000.
(b) CAPITAL EXPENDITURES. Make Capital Expenditures in any fiscal
year in an amount less than or equal to the amount set forth in the following
table for the applicable period:
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------------------------------------------------------------------
FISCAL YEAR 2008 FISCAL YEAR 2009 FISCAL YEAR 2010
------------------------------------------------------------------
$18,900,000 $13,750,000 plus the $15,250,000 plus the
amount by which amount by which
Consolidated Cash Consolidated Cash
Flow for the year Flow for the year
ending on or about ending on or about
December 31, 2008 December 31, 2009
exceeds $50,000,000 exceeds $52,500,000
------------------------------------------------------------------
FISCAL YEAR 2011 FISCAL YEAR 2012
------------------------------------------------------------------
$16,500,000 plus the $17,850,000 plus the
amount by which amount by which
Consolidated Cash Consolidated Cash
Flow for the year Flow for the year
ending on or about ending on or about
December 31, 2010 December 31, 2011
exceeds $55,000,000 exceeds $57,500,000
------------------------------------------------------------------
------------------------------------------------------------------
PROVIDED, that, $1,500,000 of unused amounts may be carried over from the
preceding fiscal year into the then current fiscal year; PROVIDED FURTHER, that
any net proceeds received by the Parent and its Subsidiaries (other than
Excluded Subsidiaries) from the Generator Sale shall be applied to the Capital
Expenditures set forth above for any period in which such proceeds are received.
8. EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an event of
default (each, an "EVENT OF DEFAULT") under this Agreement:
8.1 If Borrower fails to pay when due and payable, or when declared due
and payable, (a) all or any portion of the Obligations consisting of interest,
fees, or charges due the Lender Group, reimbursement of Lender Group Expenses,
or other amounts (other than any portion thereof constituting principal)
constituting Obligations (including any portion thereof that accrues after the
commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), and
such failure continues for a period of 3 Business Days, or (b) all or any
portion of the principal of the Obligations;
8.2 If any Loan Party or any of its Subsidiaries:
(a) fails to perform or observe any covenant or other agreement
contained in any of (i) SECTIONS 5.1, 5.2, 5.3, 5.6, 5.7, 5.10, 5.11, 5.13,
5.14, 5.16 of this Agreement, (ii) Sections 6.1 through 6.16 of this Agreement,
(iii) Section 7 of this Agreement, or (iv) Section 6 of the Security Agreement;
(b) fails to perform or observe any covenant or other agreement
contained in any of SECTIONS 5.4, 5.5, 5.8, 5.12, and 5.15 of this Agreement and
such failure continues for a period of 15 days after the earlier of (i) the date
on which such failure shall first become known to any officer of Borrower or
(ii) the date on which written notice thereof is given to Borrower by Agent; or
(c) fails to perform or observe any covenant or other agreement
contained in this Agreement, or in any of the other Loan Documents, in each
case, other than any such covenant or agreement
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that is the subject of another provision of this SECTION 8 (in which event such
other provision of this SECTION 8 shall govern), and such failure continues for
a period of 30 days after the earlier of (i) the date on which such failure
shall first become known to any officer of Borrower or (ii) the date on which
written notice thereof is given to Borrower by Agent;
8.3 If one or more judgments, orders, or awards for the payment of
money involving an aggregate amount of $1,500,000 or more (except to the extent
fully covered by insurance pursuant to which the insurer has accepted liability
therefor in writing) is entered or filed against a Loan Party or any of its
Subsidiaries, or with respect to any of their respective assets, and either (a)
there is a period of 30 consecutive days at any time after the entry of any such
judgment, order, or award during which a stay of enforcement thereof is not in
effect, or (b) enforcement proceedings are commenced upon such judgment, order,
or award;
8.4 If an Insolvency Proceeding is commenced by a Loan Party or any
of its Subsidiaries;
8.5 If an Insolvency Proceeding is commenced against a Loan Party or
any of its Subsidiaries and any of the following events occur: (a) such Loan
Party or such Subsidiary consents to the institution of such Insolvency
Proceeding against it, (b) the petition commencing the Insolvency Proceeding is
not timely controverted, (c) the petition commencing the Insolvency Proceeding
is not dismissed within 60 calendar days of the date of the filing thereof, (d)
an interim trustee is appointed to take possession of all or any substantial
portion of the properties or assets of, or to operate all or any substantial
portion of the business of, such Loan Party or its Subsidiary, or (e) an order
for relief shall have been issued or entered therein;
8.6 If a Loan Party or any of its Subsidiaries is enjoined,
restrained, or in any way prevented by court order from continuing to conduct
all or any material part of its business affairs;
8.7 If there is a default in (i) any of the Senior Secured Notes
Documents, (ii) any of the Junior Notes Documents, or (iii) one or more
agreements to which a Loan Party or any of its Subsidiaries is a party with one
or more third Persons relative to a Loan Party's or any of its Subsidiaries'
Indebtedness involving an aggregate amount of $1,500,000 or more, and such
default (A) occurs at the final maturity of the obligations thereunder, or (B)
results in a right by such third Person, irrespective of whether exercised, to
accelerate the maturity of such Loan Party's or its Subsidiary's obligations
thereunder;
8.8 If any warranty, representation, statement, or Record made
herein or in any other Loan Document or delivered in writing to Agent or any
Lender in connection with this Agreement or any other Loan Document proves to be
untrue in any material respect (except that such materiality qualifier shall not
be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof) as of the date of issuance or
making or deemed making thereof;
8.9 If the obligation of any Guarantor under the Guaranty is limited
or terminated by operation of law or by such Guarantor;
8.10 If the Security Agreement or any other Loan Document that
purports to create a Lien, shall, for any reason, fail or cease to create a
valid and perfected and, except to the extent permitted by the terms hereof or
thereof, first priority Lien on the Collateral covered thereby, except as a
result of a disposition of the applicable Collateral in a transaction permitted
under this Agreement; or
8.11 Any provision of any Loan Document shall at any time for any
reason be declared to be null and void, or the validity or enforceability
thereof shall be contested by a Loan Party or its Subsidiaries, or a proceeding
shall be commenced by a Loan Party or its Subsidiaries, or by any Governmental
Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking to
establish the invalidity or unenforceability thereof, or a Loan Party or its
Subsidiaries
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shall deny, or any holder of or trustee for the Senior Secured Notes or the
Junior Notes, seeking to establish the invalidity or unenforceability thereof,
or a Loan Party or its Subsidiaries shall deny that such Loan Party or its
Subsidiaries has any liability or obligation purported to be created under any
Loan Document.
9. RIGHTS AND REMEDIES.
9.1 RIGHTS AND REMEDIES. Upon the occurrence and during the continuation
of an Event of Default, Agent may, and, at the instruction of the Required
Lenders, shall, in each case by written notice to Borrower and in addition to
any other rights or remedies provided for hereunder or under any other Loan
Document or by applicable law, do any one or more of the following on behalf of
the Lender Group:
(a) declare the Obligations, whether evidenced by this Agreement, by
any of the other Loan Documents, or otherwise, immediately due and payable,
whereupon the same shall become and be immediately due and payable, without
presentment, demand, protest, or further notice or other requirements of any
kind, all of which are hereby expressly waived by Borrower; and
(b) declare the Revolver Commitments terminated, whereupon the
Revolver Commitments shall immediately be terminated together with any
obligation of any Lender hereunder to make Advances and the obligation of the
Issuing Lender to issue Letters of Credit.
The foregoing to the contrary notwithstanding, upon the occurrence of any Event
of Default described in SECTION 8.4 or SECTION 8.5, in addition to the remedies
set forth above, without any notice to Borrower or any other Person or any act
by the Lender Group, the Commitments shall automatically terminate and the
Obligations then outstanding, together with all accrued and unpaid interest
thereon and all fees and all other amounts due under this Agreement and the
other Loan Documents, shall automatically and immediately become due and
payable, without presentment, demand, protest, or notice of any kind, all of
which are expressly waived by Parent and Borrower.
9.2 REMEDIES CUMULATIVE. The rights and remedies of the Lender Group
under this Agreement, the other Loan Documents, and all other agreements shall
be cumulative. The Lender Group shall have all other rights and remedies not
inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by the Lender Group of one right or remedy shall be deemed an election,
and no waiver by the Lender Group of any Event of Default shall be deemed a
continuing waiver. No delay by the Lender Group shall constitute a waiver,
election, or acquiescence by it.
10. WAIVERS; INDEMNIFICATION.
10.1 DEMAND; PROTEST; ETC. Borrower waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment,
nonpayment at maturity, release, compromise, settlement, extension, or renewal
of documents, instruments, chattel paper, and guarantees at any time held by the
Lender Group on which Borrower may in any way be liable.
10.2 THE LENDER GROUP'S LIABILITY FOR COLLATERAL. Borrower hereby agrees
that: (a) so long as Agent complies with its obligations, if any, under the
Code, the Lender Group shall not in any way or manner be liable or responsible
for: (i) the safekeeping of the Collateral, (ii) any loss or damage thereto
occurring or arising in any manner or fashion from any cause, (iii) any
diminution in the value thereof, or (iv) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other Person, and (b) all risk of
loss, damage, or destruction of the Collateral shall be borne by Borrower.
10.3 INDEMNIFICATION. Borrower shall pay, indemnify, defend, and hold
the Agent-Related Persons, the Lender-Related Persons, and each Participant
(each, an "INDEMNIFIED PERSON") harmless (to the fullest extent permitted by
law) from and against any and all claims, demands, suits, actions,
investigations, proceedings, liabilities, fines, costs, penalties, and damages,
and all reasonable out-of-pocket fees and disbursements of attorneys, experts,
or consultants and all other out-of-pocket costs and expenses actually
-36-
incurred in connection therewith or in connection with the enforcement of this
indemnification (as and when they are incurred and irrespective of whether suit
is brought), at any time asserted against, imposed upon, or incurred by any of
them (a) in connection with or as a result of or related to the execution and
delivery (provided that Borrower shall not be liable for costs and expenses
(including attorneys fees) of any Lender (other than WFF) incurred in advising,
structuring, drafting, reviewing, administering or syndicating the Loan
Documents), enforcement, performance, or administration (including any
restructuring or workout with respect hereto) of this Agreement, any of the
other Loan Documents, or the transactions contemplated hereby or thereby or the
monitoring of Borrower's and its Subsidiaries' compliance with the terms of the
Loan Documents (other than disputes solely between the Lenders), (b) with
respect to any investigation, litigation, or proceeding related to this
Agreement, any other Loan Document, or the use of the proceeds of the credit
provided hereunder (irrespective of whether any Indemnified Person is a party
thereto), or any act, omission, event, or circumstance in any manner related
thereto, and (c) in connection with or arising out of any presence or release of
Hazardous Materials at, on, under, to or from any assets or properties owned,
leased or operated by Borrower or any of its Subsidiaries or any Environmental
Actions, Environmental Liabilities and Costs or Remedial Actions related in any
way to any such assets or properties of Borrower or any of its Subsidiaries
(each and all of the foregoing, the "INDEMNIFIED LIABILITIES"). The foregoing to
the contrary notwithstanding, Borrower shall have no obligation to any
Indemnified Person under this SECTION 10.3 with respect to any Indemnified
Liability that a court of competent jurisdiction finally determines to have
resulted from the gross negligence or willful misconduct of such Indemnified
Person or its officers, directors, employees, attorneys, or agents. This
provision shall survive the termination of this Agreement and the repayment of
the Obligations. If any Indemnified Person makes any payment to any other
Indemnified Person with respect to an Indemnified Liability as to which Borrower
was required to indemnify the Indemnified Person receiving such payment, the
Indemnified Person making such payment is entitled to be indemnified and
reimbursed by Borrower with respect thereto. WITHOUT LIMITATION, THE FOREGOING
INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED
LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY
NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
11. NOTICES.
Unless otherwise provided in this Agreement, all notices or demands
relating to this Agreement or any other Loan Document shall be in writing and
(except for financial statements and other informational documents which may be
sent by first-class mail, postage prepaid) shall be personally delivered or sent
by registered or certified mail (postage prepaid, return receipt requested),
overnight courier, electronic mail (at such email addresses as a party may
designate in accordance herewith), or telefacsimile. In the case of notices or
demands to Parent or Agent, as the case may be, they shall be sent to the
respective address set forth below:
If to Parent: XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxx, Xx.
Fax No. 000-000-0000
with copies to: XXXXXX XXXXXX, INC.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax No. 000-000-0000
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and:
If to Agent: XXXXX FARGO FOOTHILL, LLC
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Specialty Finance Manager
Fax No.: 000-000-0000
with copies to: PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx Hilson, Esq.
Fax No.: 000-000-0000
Any party hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other party. All notices or demands sent in accordance with this SECTION 10,
shall be deemed received on the earlier of the date of actual receipt or 3
Business Days after the deposit thereof in the mail; PROVIDED, that (a) notices
sent by overnight courier service shall be deemed to have been given when
received, (b) notices by facsimile shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall
be deemed to have been given at the opening on business on the next Business Day
for the recipient) and (c) notices by electronic mail shall be deemed received
upon the sender's receipt of an acknowledgment from the intended recipient (such
as by the "return receipt requested" function, as available, return email or
other written acknowledgment).
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
(a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH
RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR
THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH OF PARENT AND BORROWER AND EACH MEMBER OF THE LENDER
GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11(B).
(c) EACH OF PARENT AND BORROWER AND EACH MEMBER OF THE LENDER GROUP
HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
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CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH OF PARENT AND BORROWER AND EACH MEMBER OF THE LENDER
GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.
13.1 ASSIGNMENTS AND PARTICIPATIONS.
(a) With the prior written consent of Agent or, so long as no Event
of Default has occurred and is continuing, Borrower, which consent of Agent and
Borrower shall not be unreasonably withheld, delayed or conditioned, and shall
not be required in connection with an assignment to a Person that is a Lender or
an Affiliate (other than individuals) or successor of a Lender, any Lender may
assign and delegate to one or more assignees (each an "ASSIGNEE"; provided that
no Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity
Sponsor shall be permitted to become an Assignee) all or any portion of the
Obligations, the Commitments and the other rights and obligations of such Lender
hereunder and under the other Loan Documents, in a minimum amount (unless waived
by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x)
an assignment or delegation by any Lender to any other Lender or an Affiliate of
any Lender or (y) a group of new Lenders, each of which is an Affiliate of each
other or a Related Fund of such new Lender to the extent that the aggregate
amount to be assigned to all such new Lenders is at least $5,000,000); PROVIDED,
HOWEVER, that Borrower and Agent may continue to deal solely and directly with
such Lender in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions,
addresses, and related information with respect to the Assignee, have been given
to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its
Assignee have delivered to Borrower and Agent an Assignment and Acceptance and
Agent has notified the assigning Lender of its receipt thereof in accordance
with SECTION 13.1(B), and (iii) unless waived by the Agent, the assigning Lender
or Assignee has paid to Agent for Agent's separate account a processing fee in
the amount of $3,500.
(b) From and after the date that Agent notifies the assigning Lender
(with a copy to Borrower) that it has received an executed Assignment and
Acceptance and, if applicable, payment of the required processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Lender under the Loan
Documents, and (ii) the assigning Lender shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (except
with respect to SECTION 10.3 hereof) and be released from any future obligations
under this Agreement (and in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement and the other Loan Documents, such Lender shall cease to be
a party hereto and thereto), and such assignment shall effect a novation among
Borrower, the assigning Lender, and the Assignee; PROVIDED, HOWEVER, that
nothing contained herein shall release any assigning Lender from obligations
that survive the termination of this Agreement, including such assigning
Lender's obligations under SECTION 15 and SECTION 17.9(A) of this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
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pursuant hereto, (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
Borrower or the performance or observance by Borrower of any of its obligations
under this Agreement or any other Loan Document furnished pursuant hereto, (iii)
such Assignee confirms that it has received a copy of this Agreement, together
with such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance, (iv) such Assignee will, independently and without reliance upon
Agent, such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement, (v)
such Assignee appoints and authorizes Agent to take such actions and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to Agent, by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto, and (vi) such Assignee agrees that it will
perform all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender and acknowledges all the terms and provisions
of the Loan Documents.
(d) Immediately upon Agent's receipt of the required processing fee,
if applicable, and delivery of notice to the assigning Lender pursuant to
SECTION 13.1(B), this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Lender
PRO TANTO.
(e) Any Lender may at any time sell to one or more commercial banks,
financial institutions, or other Persons (a "PARTICIPANT") participating
interests in all or any portion of its Obligations, its Commitment, and the
other rights and interests of that Lender (the "ORIGINATING LENDER") hereunder
and under the other Loan Documents; PROVIDED, HOWEVER, that (i) the Originating
Lender shall remain a "Lender" for all purposes of this Agreement and the other
Loan Documents and the Participant receiving the participating interest in the
Obligations, the Commitments, and the other rights and interests of the
Originating Lender hereunder shall not constitute a "Lender" hereunder or under
the other Loan Documents and the Originating Lender's obligations under this
Agreement shall remain unchanged, (ii) the Originating Lender shall remain
solely responsible for the performance of such obligations, (iii) Borrower,
Agent, and the Lenders shall continue to deal solely and directly with the
Originating Lender in connection with the Originating Lender's rights and
obligations under this Agreement and the other Loan Documents, (iv) no Lender
shall transfer or grant any participating interest under which the Participant
has the right to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment to, or consent or waiver with respect to this Agreement or of any
other Loan Document would (A) extend the final maturity date of the Obligations
hereunder in which such Participant is participating, (B) reduce the interest
rate applicable to the Obligations hereunder in which such Participant is
participating, (C) release all or substantially all of the Collateral or
guaranties (except to the extent expressly provided herein or in any of the Loan
Documents) supporting the Obligations hereunder in which such Participant is
participating, (D) postpone the payment of, or reduce the amount of, the
interest or fees payable to such Participant through such Lender, or (E) change
the amount or due dates of scheduled principal repayments or prepayments or
premiums, and (v) all amounts payable by Borrower hereunder shall be determined
as if such Lender had not sold such participation, except that, if amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement. The rights of any Participant only shall be
derivative through the Originating Lender with whom such Participant
participates and no Participant shall have any rights under this Agreement or
the other Loan Documents or any direct rights as to the other Lenders, Agent,
Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or
otherwise in respect of the Obligations. No Participant shall have the right to
participate directly in the making of decisions by the Lenders among themselves.
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(f) In connection with any such assignment or participation or
proposed assignment or participation or any grant of a security interest in, or
pledge of, its rights under and interest in this Agreement, a Lender may,
subject to the provisions of SECTION 17.9, disclose all documents and
information which it now or hereafter may have relating to Borrower and its
Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement in favor of any
Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank
or U.S. Treasury Regulation 31 CFR ss.203.24, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
(h) Agent shall, acting solely for this purpose as a non-fiduciary
agent of Borrower, maintain, or cause to be maintained, a register (the
"REGISTER") on which it shall enter the names and addresses of the Lenders and
the Commitments of, and the principal amount of each loan held by such Lender
(and stated interest thereon) and Obligations with respect to Letters of Credit
owing to, each Lender from time to time. Subject to the last sentence of this
SECTION 13.1(H), the entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and Borrower, Agent and Lenders shall treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. In the case of an assignment to an Affiliate or a
Related Fund pursuant to SECTION 13.1(A) as to which an Assignment and
Acceptance is not delivered to Agent, the assigning Lender shall, acting solely
for this purpose as a non-fiduciary agent of Borrower, maintain a register (the
"RELATED PARTY REGISTER") comparable to the Register on behalf of Borrower. The
Register and the Related Party Register shall be available for inspection by
Borrower and the Agent at any reasonable time and from time to time upon
reasonable notice. Any assignment of a Registered Loan (and the registered note,
if any, evidencing the same) may be effected only by the registration of such
assignment on the Register.
(i) In the event that a Lender sells participations in the
Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower,
shall maintain a register on which it enters the name of all participants in the
Registered Loans held by it (the "PARTICIPANT REGISTER"). A Registered Loan (and
the Registered Note, if any, evidencing the same) may be participated in whole
or in part only by registration of such participation on the Participant
Register (and each registered note shall expressly so provide). Any
participation of such Registered Loan (and the registered note, if any,
evidencing the same) may be effected only by the registration of such
participation on the Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall
make a copy of its Participant Register in the extent it has one) available for
review by Borrower from time to time as Borrower may reasonably request.
13.2 SUCCESSORS. This Agreement shall bind and inure to the benefit of
the respective successors and assigns of each of the parties; PROVIDED, HOWEVER,
that Borrower may not assign this Agreement or any rights or duties hereunder
without the Lenders' prior written consent and any prohibited assignment shall
be absolutely void AB INITIO. No consent to assignment by the Lenders shall
release Borrower from its Obligations. A Lender may assign this Agreement and
the other Loan Documents and its rights and duties hereunder and thereunder
pursuant to SECTION 13.1 hereof and, except as expressly required pursuant to
SECTION 13.1 hereof, no consent or approval by Borrower is required in
connection with any such assignment.
14. AMENDMENTS; WAIVERS.
14.1 AMENDMENTS AND WAIVERS.
(a) No amendment, waiver or other modification of any provision of
this Agreement or any other Loan Document (other than Bank Product Agreements or
the Fee Letter), and no consent with respect to any departure by Parent or
Borrower therefrom, shall be effective unless the same shall be in writing
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and signed by the Required Lenders (or by Agent at the written request of the
Required Lenders) and Parent and Borrower and then any such waiver or consent
shall be effective, but only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no such waiver, amendment, or
consent shall, unless in writing and signed by all of the Lenders directly
affected thereby and Parent and Borrower, do any of the following:
(i) increase the amount of or extend the expiration date of any
Commitment of any Lender,
(ii) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees, or other
amounts due hereunder or under any other Loan Document,
(iii) reduce the principal of, or the rate of interest on, any
loan or other extension of credit hereunder, or reduce any fees or other amounts
payable hereunder or under any other Loan Document (except (y) in connection
with the waiver of applicability of SECTION 2.6(C) (which waiver shall be
effective with the written consent of the Required Lenders), and (z) that any
amendment or modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of interest or a
reduction of fees for purposes of this clause (iii)),
(iv) amend or modify this Section or any provision of this
Agreement providing for consent or other action by all Lenders,
(v) other than as permitted by SECTION 15.11, release Agent's
Lien in and to any of the Collateral,
(vi) change the definition of "Required Lenders" or "Pro Rata
Share",
(vii) contractually subordinate any of the Agent's Liens,
(viii) other than in connection with a merger, liquidation,
dissolution or sale of such Person expressly permitted by the terms hereof or
the other Loan Documents, release Borrower or any Guarantor from any obligation
for the payment of money or consent to the assignment or transfer by the
Borrower or any Guarantor of any of its rights or duties under this Agreement or
the other Loan Documents,
(ix) amend any of the provisions of SECTION 2.4(B)(I) or (II)
or SECTION 2.4(E) or (F),
(x) amend SECTION 13.1(A) to permit a Loan Party, an Affiliate
of a Loan Party, Equity Sponsor, or an Affiliate of Equity Sponsor to be
permitted to become an Assignee, or
(xi) change the definition of TTP EBITDA or Maximum Revolver
Amount.
(b) No amendment, waiver, modification, or consent shall amend,
modify, or waive (i) the definition of, or any of the terms or provisions of,
the Fee Letter, without the written consent of Agent and Borrower (and shall not
require the written consent of any of the Lenders), and (ii) any provision of
Section 15 pertaining to Agent, or any other rights or duties of Agent under
this Agreement or the other Loan Documents, without the written consent of
Agent, Borrower, and the Required Lenders,
(c) No amendment, waiver, modification, or consent shall amend,
modify, or waive any provision of this Agreement or the other Loan Documents
pertaining to Issuing Lender, or any other rights or duties of Issuing Lender
under this Agreement or the other Loan Documents, without the written consent of
Issuing Lender, Agent, Borrower, and the Required Lenders,
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(d) No amendment, waiver, modification, or consent shall amend,
modify, or waive any provision of this Agreement or the other Loan Documents
pertaining to Swing Lender, or any other rights or duties of Swing Lender under
this Agreement or the other Loan Documents, without the written consent of Swing
Lender, Agent, Borrower, and the Required Lenders,
(e) Anything in this SECTION 14.1 to the contrary notwithstanding,
any amendment, modification, waiver, consent, termination, or release of, or
with respect to, any provision of this Agreement or any other Loan Document that
relates only to the relationship of the Lender Group among themselves, and that
does not affect the rights or obligations of Parent or Borrower, shall not
require consent by or the agreement of Parent or Borrower.
14.2 REPLACEMENT OF HOLDOUT LENDER.
(a) If any action to be taken by the Lender Group or Agent
hereunder requires the unanimous consent, authorization, or agreement of all
Lenders and if such action has received the consent, authorization, or agreement
of the Required Lenders but not all of the Lenders, then Agent, upon at least 5
Business Days prior irrevocable notice, may permanently replace any Lender (a
"HOLDOUT LENDER") that failed to give its consent, authorization, or agreement
with one or more Replacement Lenders, and the Holdout Lender shall have no right
to refuse to be replaced hereunder. Such notice to replace the Holdout Lender
shall specify an effective date for such replacement, which date shall not be
later than 15 Business Days after the date such notice is given.
(b) Prior to the effective date of such replacement, the Holdout
Lender and each Replacement Lender shall execute and deliver an Assignment and
Acceptance, subject only to the Holdout Lender being repaid its share of the
outstanding Obligations (including an assumption of its Pro Rata Share of the
Risk Participation Liability) without any premium or penalty of any kind
whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver
any such Assignment and Acceptance prior to the effective date of such
replacement, the Holdout Lender shall be deemed to have executed and delivered
such Assignment and Acceptance. The replacement of any Holdout Lender shall be
made in accordance with the terms of SECTION 13.1. Until such time as the
Replacement Lenders shall have acquired all of the Obligations, the Commitments,
and the other rights and obligations of the Holdout Lender hereunder and under
the other Loan Documents, the Holdout Lender shall remain obligated to make the
Holdout Lender's Pro Rata Share of Advances and to purchase a participation in
each Letter of Credit, in an amount equal to its Pro Rata Share of the Risk
Participation Liability of such Letter of Credit.
14.3 NO WAIVERS; CUMULATIVE REMEDIES. No failure by Agent or any Lender
to exercise any right, remedy, or option under this Agreement or any other Loan
Document, or delay by Agent or any Lender in exercising the same, will operate
as a waiver thereof. No waiver by Agent or any Lender will be effective unless
it is in writing, and then only to the extent specifically stated. No waiver by
Agent or any Lender on any occasion shall affect or diminish Agent's and each
Lender's rights thereafter to require strict performance by Parent and Borrower
of any provision of this Agreement. Agent's and each Lender's rights under this
Agreement and the other Loan Documents will be cumulative and not exclusive of
any other right or remedy that Agent or any Lender may have.
15. AGENT; THE LENDER GROUP.
15.1 APPOINTMENT AND AUTHORIZATION OF AGENT. Each Lender hereby
designates and appoints WFF as its representative under this Agreement and the
other Loan Documents and each Lender hereby irrevocably authorizes Agent to
execute and deliver each of the other Loan Documents on its behalf and to take
such other action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to Agent by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto. Agent
agrees to act as such on the express conditions contained in this SECTION 15.
The provisions of this
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SECTION 15 are solely for the benefit of Agent and the Lenders, and Parent and
its Subsidiaries shall have no rights as a third party beneficiary of any of the
provisions contained herein. Any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document notwithstanding, Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
nor shall Agent have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against Agent; it being expressly understood and
agreed that the use of the word "Agent" is for convenience only, that WFF is
merely the representative of the Lenders, and only has the contractual duties
set forth herein. Except as expressly otherwise provided in this Agreement,
Agent shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining from
taking any actions that Agent expressly is entitled to take or assert under or
pursuant to this Agreement and the other Loan Documents. Without limiting the
generality of the foregoing, or of any other provision of the Loan Documents
that provides rights or powers to Agent, Lenders agree that Agent shall have the
right to exercise the following powers as long as this Agreement remains in
effect: (a) maintain, in accordance with its customary business practices,
ledgers and records reflecting the status of the Obligations, the Collateral,
the Collections of Parent and its Subsidiaries, and related matters, (b) execute
or file any and all financing or similar statements or notices, amendments,
renewals, supplements, documents, instruments, proofs of claim, notices and
other written agreements with respect to the Loan Documents, (c) make Advances,
for itself or on behalf of Lenders, as provided in the Loan Documents, (d)
exclusively receive, apply, and distribute the Collections of Parent and its
Subsidiaries as provided in the Loan Documents, (e) open and maintain such bank
accounts and cash management arrangements as Agent deems necessary and
appropriate in accordance with the Loan Documents for the foregoing purposes
with respect to the Collateral and the Collections of Parent and its
Subsidiaries, (f) perform, exercise, and enforce any and all other rights and
remedies of the Lender Group with respect to Parent or its Subsidiaries, the
Obligations, the Collateral, the Collections of Parent and its Subsidiaries, or
otherwise related to any of same as provided in the Loan Documents, and (g)
incur and pay such Lender Group Expenses as Agent may deem necessary or
appropriate for the performance and fulfillment of its functions and powers
pursuant to the Loan Documents.
15.2 DELEGATION OF DUTIES. Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys in fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Agent shall not be responsible for the
negligence or misconduct of any agent or attorney in fact that it selects as
long as such selection was made without gross negligence or willful misconduct.
15.3 LIABILITY OF AGENT. None of the Agent-Related Persons shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (b) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by Parent or any of its Subsidiaries
or Affiliates, or any officer or director thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of Parent or its Subsidiaries or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the books and records or properties of Parent or its
Subsidiaries.
15.4 RELIANCE BY AGENT. Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, telefacsimile or other electronic
method of transmission, telex or telephone message, statement or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent, or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to Borrower or counsel to any
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Xxxxxx), independent accountants and other experts selected by Agent. Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless Agent shall first receive such
advice or concurrence of the Lenders as it deems appropriate and until such
instructions are received, Agent shall act, or refrain from acting, as it deems
advisable. If Agent so requests, it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action.
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the requisite Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
15.5 NOTICE OF DEFAULT OR EVENT OF DEFAULT. Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest, fees, and
expenses required to be paid to Agent for the account of the Lenders and, except
with respect to Events of Default of which Agent has actual knowledge, unless
Agent shall have received written notice from a Lender or Borrower referring to
this Agreement, describing such Default or Event of Default, and stating that
such notice is a "notice of default." Agent promptly will notify the Lenders of
its receipt of any such notice or of any Event of Default of which Agent has
actual knowledge. If any Lender obtains actual knowledge of any Event of
Default, such Lender promptly shall notify the other Lenders and Agent of such
Event of Default. Each Lender shall be solely responsible for giving any notices
to its Participants, if any. Subject to SECTION 15.4, Agent shall take such
action with respect to such Default or Event of Default as may be requested by
the Required Lenders in accordance with SECTION 8; PROVIDED, HOWEVER, that
unless and until Agent has received any such request, Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable.
15.6 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by Agent hereinafter taken, including any review of the affairs of Parent
and its Subsidiaries or Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower or any other Person party to a Loan Document, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to Borrower. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower or any
other Person party to a Loan Document. Except for notices, reports, and other
documents expressly herein required to be furnished to the Lenders by Agent,
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of Borrower or any
other Person party to a Loan Document that may come into the possession of any
of the Agent-Related Persons.
15.7 COSTS AND EXPENSES; INDEMNIFICATION. Agent may incur and pay Lender
Group Expenses to the extent Agent reasonably deems necessary or appropriate for
the performance and fulfillment of its functions, powers, and obligations
pursuant to the Loan Documents, including court costs, attorneys fees and
expenses, fees and expenses of financial accountants, advisors, consultants, and
appraisers, costs of collection by outside collection agencies, auctioneer fees
and expenses, and costs of security guards or insurance premiums paid to
maintain the Collateral, whether or not Borrower is obligated to reimburse Agent
or Lenders for such expenses pursuant to this Agreement or otherwise. Agent is
authorized and directed to deduct and retain sufficient amounts from the
Collections of Parent and its Subsidiaries received by Agent to reimburse
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Agent for such out-of-pocket costs and expenses prior to the distribution of any
amounts to Lenders. In the event Agent is not reimbursed for such costs and
expenses by Parent or its Subsidiaries, each Lender hereby agrees that it is and
shall be obligated to pay to Agent such Lender's Pro Rata Share thereof. Whether
or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by
or on behalf of Borrower and without limiting the obligation of Borrower to do
so), according to their Pro Rata Shares, from and against any and all
Indemnified Liabilities; PROVIDED, HOWEVER, that no Lender shall be liable for
the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct nor shall any Lender be liable for the obligations of any Defaulting
Lender in failing to make an Advance or other extension of credit hereunder.
Without limitation of the foregoing, each Lender shall reimburse Agent upon
demand for such Lender's Pro Rata Share of any costs or out of pocket expenses
(including attorneys, accountants, advisors, and consultants fees and expenses)
incurred by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that Agent is
not reimbursed for such expenses by or on behalf of Borrower. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of Agent.
15.8 AGENT IN INDIVIDUAL CAPACITY. WFF and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in, and generally engage in any kind of banking, trust,
financial advisory, underwriting, or other business with Parent and its
Subsidiaries and Affiliates and any other Person party to any Loan Documents as
though WFF were not Agent hereunder, and, in each case, without notice to or
consent of the other members of the Lender Group. The other members of the
Lender Group acknowledge that, pursuant to such activities, WFF or its
Affiliates may receive information regarding Parent or its Affiliates or any
other Person party to any Loan Documents that is subject to confidentiality
obligations in favor of Parent or such other Person and that prohibit the
disclosure of such information to the Lenders, and the Lenders acknowledge that,
in such circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver Agent will use its reasonable best efforts to obtain),
Agent shall not be under any obligation to provide such information to them. The
terms "Lender" and "Lenders" include WFF in its individual capacity.
15.9 SUCCESSOR AGENT. Agent may resign as Agent upon 30 days prior
written notice to the Lenders (unless such notice is waived by the Required
Lenders) and Borrower (unless such notice is waived by Borrower). If Agent
resigns under this Agreement, the Required Lenders shall be entitled, with (so
long as no Event of Default has occurred and is continuing) the consent of
Borrower (such consent not to be unreasonably withheld, delayed, or
conditioned), appoint a successor Agent for the Lenders. If, at the time that
Agent's resignation is effective, it is acting as the Issuing Lender or the
Swing Lender, such resignation shall also operate to effectuate its resignation
as the Issuing Lender or the Swing Lender, as applicable, and it shall
automatically be relieved of any further obligation to issue Letters of Credit
or make Swing Loans. If no successor Agent is appointed prior to the effective
date of the resignation of Agent, Agent may appoint, after consulting with the
Lenders and Borrower, a successor Agent. If Agent has materially breached or
failed to perform any material provision of this Agreement or of applicable law,
the Required Lenders may agree in writing to remove and replace Agent with a
successor Agent from among the Lenders. In any such event, upon the acceptance
of its appointment as successor Agent hereunder, such successor Agent shall
succeed to all the rights, powers, and duties of the retiring Agent and the term
"Agent" shall mean such successor Agent and the retiring Agent's appointment,
powers, and duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this SECTION 15 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor Agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of Agent
hereunder until such time, if any, as the Lenders appoint a successor Agent as
provided for above.
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15.10 LENDER IN INDIVIDUAL CAPACITY. Any Lender and its respective
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting, or other business with Parent
and its Subsidiaries and Affiliates and any other Person party to any Loan
Documents as though such Lender were not a Lender hereunder without notice to or
consent of the other members of the Lender Group. The other members of the
Lender Group acknowledge that, pursuant to such activities, such Lender and its
respective Affiliates may receive information regarding Parent or its Affiliates
or any other Person party to any Loan Documents that is subject to
confidentiality obligations in favor of Parent or such other Person and that
prohibit the disclosure of such information to the Lenders, and the Lenders
acknowledge that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver such Lender will use its reasonable
best efforts to obtain), such Lender shall not be under any obligation to
provide such information to them.
15.11 COLLATERAL MATTERS.
(a) The Lenders hereby irrevocably authorize Agent, at its option
and in its sole discretion, to release any Lien on any Collateral (i) upon the
termination of the Commitments and payment and satisfaction in full by Borrower
of all Obligations, (ii) constituting property being sold or disposed of if a
release is required or desirable in connection therewith and if Borrower
certifies to Agent that the sale or disposition is permitted under SECTION 6.4
of this Agreement or the other Loan Documents (and Agent may rely conclusively
on any such certificate, without further inquiry), (iii) constituting property
in which Parent or its Subsidiaries owned no interest at the time the Agent's
Lien was granted nor at any time thereafter, (iv) constituting property leased
to Parent or its Subsidiaries under a lease that has expired or is terminated in
a transaction permitted under this Agreement, or (v) to the extent such release
is required pursuant to the Intercreditor Agreement. Except as provided above,
Agent will not execute and deliver a release of any Lien on any Collateral
without the prior written authorization of (y) if the release is of all or
substantially all of the Collateral, all of the Lenders, or (z) otherwise, the
Required Lenders. Upon request by Agent or Borrower at any time, the Lenders
will confirm in writing Agent's authority to release any such Liens on
particular types or items of Collateral pursuant to this SECTION 15.11;
PROVIDED, HOWEVER, that (1) Agent shall not be required to execute any document
necessary to evidence such release on terms that, in Agent's opinion, would
expose Agent to liability or create any obligation or entail any consequence
other than the release of such Lien without recourse, representation, or
warranty, and (2) such release shall not in any manner discharge, affect, or
impair the Obligations or any Liens (other than those expressly being released)
upon (or obligations of Borrower in respect of) all interests retained by
Borrower, including, the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the
Lenders to assure that the Collateral exists or is owned by Parent or its
Subsidiaries or is cared for, protected, or insured or has been encumbered, or
that the Agent's Liens have been properly or sufficiently or lawfully created,
perfected, protected, or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to Agent pursuant to any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its
sole discretion given Agent's own interest in the Collateral in its capacity as
one of the Lenders and that Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing, except as otherwise
provided herein.
15.12 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS.
(a) Each of the Lenders agrees that it shall not, without the
express written consent of Agent, and that it shall, to the extent it is
lawfully entitled to do so, upon the written request of Agent, set off against
the Obligations, any amounts owing by such Lender to Parent or its Subsidiaries
or any deposit accounts of Parent or its Subsidiaries now or hereafter
maintained with such Lender. Each of the Lenders
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further agrees that it shall not, unless specifically requested to do so in
writing by Agent, take or cause to be taken any action, including, the
commencement of any legal or equitable proceedings to enforce any Loan Document
against Borrower or any Guarantor or to foreclose any Lien on, or otherwise
enforce any security interest in, any of the Collateral.
(b) If, at any time or times any Lender shall receive (i) by
payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any
payments with respect to the Obligations, except for any such proceeds or
payments received by such Lender from Agent pursuant to the terms of this
Agreement, or (ii) payments from Agent in excess of such Lender's Pro Rata Share
of all such distributions by Agent, such Lender promptly shall (A) turn the same
over to Agent, in kind, and with such endorsements as may be required to
negotiate the same to Agent, or in immediately available funds, as applicable,
for the account of all of the Lenders and for application to the Obligations in
accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the
Obligations owed to the other Lenders so that such excess payment received shall
be applied ratably as among the Lenders in accordance with their Pro Rata
Shares; PROVIDED, HOWEVER, that to the extent that such excess payment received
by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to such
purchasing party, but without interest except to the extent that such purchasing
party is required to pay interest in connection with the recovery of the excess
payment.
15.13 AGENCY FOR PERFECTION. Agent hereby appoints each other Lender as
its agent (and each Lender hereby accepts such appointment) for the purpose of
perfecting the Agent's Liens in assets which, in accordance with Article 8 or
Article 9, as applicable, of the Code can be perfected by possession or control.
Should any Lender obtain possession or control of any such Collateral, such
Lender shall notify Agent thereof, and, promptly upon Agent's request therefor
shall deliver possession or control of such Collateral to Agent or in accordance
with Agent's instructions.
15.14 PAYMENTS BY AGENT TO THE LENDERS. All payments to be made by Agent
to the Lenders shall be made by bank wire transfer of immediately available
funds pursuant to such wire transfer instructions as each party may designate
for itself by written notice to Agent. Concurrently with each such payment,
Agent shall identify whether such payment (or any portion thereof) represents
principal, premium, fees, or interest of the Obligations.
15.15 CONCERNING THE COLLATERAL AND RELATED LOAN DOCUMENTS. Each member
of the Lender Group authorizes and directs Agent to enter into this Agreement
and the other Loan Documents. Each member of the Lender Group agrees that any
action taken by Agent in accordance with the terms of this Agreement or the
other Loan Documents relating to the Collateral and the exercise by Agent of its
powers set forth therein or herein, together with such other powers that are
reasonably incidental thereto, shall be binding upon all of the Lenders.
15.16 AUDITS AND EXAMINATION REPORTS; CONFIDENTIALITY; DISCLAIMERS BY
LENDERS; OTHER REPORTS AND INFORMATION. By becoming a party to this Agreement,
each Lender:
(a) is deemed to have requested that Agent furnish such Lender,
promptly after it becomes available, a copy of each field audit or examination
report respecting Parent or its Subsidiaries (each a "REPORT" and collectively,
"REPORTS") prepared by or at the request of Agent, and Agent shall so furnish
each Lender with such Reports,
(b) expressly agrees and acknowledges that Agent does not (i) make
any representation or warranty as to the accuracy of any Report, and (ii) shall
not be liable for any information contained in any Report,
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(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that Agent or other party performing any
audit or examination will inspect only specific information regarding Parent and
its Subsidiaries and will rely significantly upon Parent's and its Subsidiaries'
books and records, as well as on representations of Borrower's personnel,
(d) agrees to keep all Reports and other material, non-public
information regarding Parent and its Subsidiaries and their operations, assets,
and existing and contemplated business plans in a confidential manner in
accordance with SECTION 17.9, and
(e) without limiting the generality of any other indemnification
provision contained in this Agreement, agrees: (i) to hold Agent and any other
Lender preparing a Report harmless from any action the indemnifying Lender may
take or fail to take or any conclusion the indemnifying Lender may reach or draw
from any Report in connection with any loans or other credit accommodations that
the indemnifying Lender has made or may make to Borrower, or the indemnifying
Lender's participation in, or the indemnifying Lender's purchase of, a loan or
loans of Borrower, and (ii) to pay and protect, and indemnify, defend and hold
Agent, and any such other Lender preparing a Report harmless from and against,
the claims, actions, proceedings, damages, costs, expenses, and other amounts
(including, attorneys fees and costs) incurred by Agent and any such other
Lender preparing a Report as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying Lender.
In addition to the foregoing: (x) any Lender may from time to time request of
Agent in writing that Agent provide to such Lender a copy of any report or
document provided by Parent or its Subsidiaries to Agent that has not been
contemporaneously provided by Parent or such Subsidiary to such Lender, and,
upon receipt of such request, Agent promptly shall provide a copy of same to
such Lender, (y) to the extent that Agent is entitled, under any provision of
the Loan Documents, to request additional reports or information from Parent or
its Subsidiaries, any Lender may, from time to time, reasonably request Agent to
exercise such right as specified in such Lender's notice to Agent, whereupon
Agent promptly shall request of Borrower the additional reports or information
reasonably specified by such Lender, and, upon receipt thereof from Parent or
such Subsidiary, Agent promptly shall provide a copy of same to such Lender, and
(z) any time that Agent renders to Borrower a statement regarding the Loan
Account, Agent shall send a copy of such statement to each Lender.
15.17 SEVERAL OBLIGATIONS; NO LIABILITY. Notwithstanding that certain of
the Loan Documents now or hereafter may have been or will be executed only by or
in favor of Agent in its capacity as such, and not by or in favor of the
Lenders, any and all obligations on the part of Agent (if any) to make any
credit available hereunder shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their
respective Commitments, to make an amount of such credit not to exceed, in
principal amount, at any one time outstanding, the amount of their respective
Commitments. Nothing contained herein shall confer upon any Lender any interest
in, or subject any Lender to any liability for, or in respect of, the business,
assets, profits, losses, or liabilities of any other Lender. Each Lender shall
be solely responsible for notifying its Participants of any matters relating to
the Loan Documents to the extent any such notice may be required, and no Lender
shall have any obligation, duty, or liability to any Participant of any other
Lender. Except as provided in SECTION 15.7, no member of the Lender Group shall
have any liability for the acts of any other member of the Lender Group. No
Lender shall be responsible to Borrower or any other Person for any failure by
any other Lender to fulfill its obligations to make credit available hereunder,
nor to advance for it or on its behalf in connection with its Commitment, nor to
take any other action on its behalf hereunder or in connection with the
financing contemplated herein.
16. WITHHOLDING TAXES.
(a) All payments made by Borrower hereunder or under any note or
other Loan Document will be made without setoff, counterclaim, or other defense.
In addition, all such payments will be
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made free and clear of, and without deduction or withholding for, any present or
future Taxes, and in the event any deduction or withholding of Taxes is
required, Borrower shall comply with the next sentence of this SECTION 16(A). If
any Taxes are so levied or imposed, Borrower agrees to pay the full amount of
such Taxes and such additional amounts as may be necessary so that every payment
of all amounts due under this Agreement, any note, or Loan Document, including
any amount paid pursuant to this SECTION 16(A) after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided for
herein; provided, however, that Borrower shall not be required to increase any
such amounts if the increase in such amount payable results from Agent's or such
Lender's own willful misconduct or gross negligence (as finally determined by a
court of competent jurisdiction). Borrower will furnish to Agent as promptly as
possible after the date the payment of any Tax is due pursuant to applicable
law, certified copies of tax receipts evidencing such payment by Borrower or, if
such receipts are not available, such other evidence of payment as may be
reasonably acceptable to Agent.
(b) Borrower agrees to pay any present or future stamp, value
added or documentary taxes or any other excise or property taxes, charges, or
similar levies that arise from any payment made hereunder or from the execution,
delivery, performance, recordation, or filing of, or otherwise with respect to
this Agreement or any other Loan Document.
(c) If a Lender or Participant is entitled to claim an exemption
or reduction from United States withholding tax, such Lender or Participant
agrees with and in favor of Agent, to deliver to Agent (or, in the case of a
Participant, to the Lender granting the participation only) one of the following
before receiving its first payment under this Agreement:
(i) if such Lender or Participant is entitled to claim an
exemption from United States withholding tax pursuant to its portfolio interest
exception, (A) a statement of the Lender or Participant, signed under penalty of
perjury, that it is not a (I) a "bank" as described in Section 881(c)(3)(A) of
the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section
871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to
Borrower within the meaning of Section 864(d)(4) of the IRC, and (B) a properly
completed and executed IRS Form W-8BEN or Form W-8IMY (with proper attachments);
(ii) if such Lender or Participant is entitled to claim an
exemption from, or a reduction of, withholding tax under a United States tax
treaty, a properly completed and executed copy of IRS Form W-8BEN;
(iii) if such Lender or Participant is entitled to claim that
interest paid under this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade or business of
such Lender, a properly completed and executed copy of IRS Form W-8ECI;
(iv) if such Lender or Participant is entitled to claim that
interest paid under this Agreement is exempt from United States withholding tax
because such Lender or Participant serves as an intermediary, a properly
completed and executed copy of IRS Form W-8IMY (with proper attachments); or
(v) a properly completed and executed copy of any other form
or forms, including IRS Form W-9, as may be required under the IRC or other laws
of the United States as a condition to exemption from, or reduction of, United
States withholding or backup withholding tax.
Each Lender or Participant shall provide new forms (or successor forms) upon the
expiration or obsolescence of any previously delivered forms and to promptly
notify Agent (or, in the case of a Participant, to the Lender granting the
participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(d) If a Lender or Participant claims an exemption from
withholding tax in a jurisdiction other than the United States, such Lender or
such Participant agrees with and in favor of Agent, to deliver to
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Agent (or, in the case of a Participant, to the Lender granting the
participation only) any such form or forms, as may be required under the laws of
such jurisdiction as a condition to exemption from, or reduction of, foreign
withholding or backup withholding tax before receiving its first payment under
this Agreement, but only if such Lender or such Participant is legally able to
deliver such forms, PROVIDED, HOWEVER, that nothing in this Section 16(d) shall
require a Lender or Participant to disclose any information that it deems to be
confidential (including without limitation, its tax returns). Each Lender and
each Participant shall provide new forms (or successor forms) upon the
expiration or obsolescence of any previously delivered forms and to promptly
notify Agent (or, in the case of a Participant, to the Lender granting the
participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(e) If a Lender or Participant claims exemption from, or reduction
of, withholding tax and such Lender or Participant sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
Borrower to such Lender or Participant, such Lender or Participant agrees to
notify Agent (or, in the case of a sale of a participation interest, to the
Lender granting the participation only) of the percentage amount in which it is
no longer the beneficial owner of Obligations of Borrower to such Lender or
Participant. To the extent of such percentage amount, Agent will treat such
Lender's or such Participant's documentation provided pursuant to Section 16(c)
or 16(d) as no longer valid. With respect to such percentage amount, such
Participant or Assignee may provide new documentation, pursuant to Section 16(c)
or 16(d), if applicable. Borrower agrees that each Participant shall be entitled
to the benefits of this Section 16 with respect to its participation in any
portion of the Commitments and the Obligations so long as such Participant
complies with the obligations set forth in this Section 16 with respect thereto.
(f) If a Lender or a Participant is entitled to a reduction in the
applicable withholding tax, Agent (or, in the case of a Participant, to the
Lender granting the participation) may withhold from any interest payment to
such Lender or such Participant an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the forms or other
documentation required by SUBSECTION (C) OR (D) of this SECTION 16 are not
delivered to Agent (or, in the case of a Participant, to the Lender granting the
participation), then Agent (or, in the case of a Participant, to the Lender
granting the participation) may withhold from any interest payment to such
Lender or such Participant not providing such forms or other documentation an
amount equivalent to the applicable withholding tax.
(g) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that Agent (or, in the case of a
Participant, to the Lender granting the participation) did not properly withhold
tax from amounts paid to or for the account of any Lender or any Participant due
to a failure on the part of the Lender or any Participant (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify Agent (or such Participant failed to notify the Lender
granting the participation) of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify and hold Agent harmless (or, in the case of
a Participant, such Participant shall indemnify and hold the Lender granting the
participation harmless) for all amounts paid, directly or indirectly, by Agent
(or, in the case of a Participant, to the Lender granting the participation), as
tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to Agent (or, in the case of
a Participant, to the Lender granting the participation only) under this SECTION
16, together with all costs and expenses (including attorneys fees and
expenses). The obligation of the Lenders and the Participants under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of Agent.
(h) If Agent or a Lender determines, in its sole discretion, that
it has received a refund of any Taxes as to which it has been indemnified by
Borrower or with respect to which Borrower has paid additional amounts pursuant
to this Section 16, so long as no Default or Event of Default has occurred and
is continuing, it shall pay over such refund to Borrower (but only to the extent
of payments made, or additional amounts paid, by Borrower under this Section 16
with respect to Taxes giving rise to such a refund), net of all out-of-pocket
expenses of Agent or such Lender and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such a refund);
provided, that Borrower, upon the request of Agent or such Lender, agrees to
repay the amount paid over to Borrower (plus any penalties, interest or other
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charges, imposed by the relevant Governmental Authority, other than such
penalties, interest or other charges imposed as a result of the willful
misconduct or gross negligence of Agent hereunder) to Agent or such Lender in
the event Agent or such Lender is required to repay such refund to such
Governmental Authority. Notwithstanding anything in this Credit Agreement to the
contrary, this Section 16 shall not be construed to require Agent or any Lender
to make available its tax returns (or any other information which it deems
confidential) to Borrower or any other Person.
17. GENERAL PROVISIONS.
17.1 EFFECTIVENESS. This Agreement shall be binding and deemed effective
when executed by Parent, Borrower, Agent, and each Lender whose signature is
provided for on the signature pages hereof.
17.2 SECTION HEADINGS. Headings and numbers have been set forth herein
for convenience only. Unless the contrary is compelled by the context,
everything contained in each Section applies equally to this entire Agreement.
17.3 INTERPRETATION. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed against the Lender Group or Parent or
Borrower, whether under any rule of construction or otherwise. On the contrary,
this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of all parties hereto.
17.4 SEVERABILITY OF PROVISIONS. Each provision of this Agreement shall
be severable from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
17.5 BANK PRODUCT PROVIDERS. Each Bank Product Provider shall be deemed
a third party beneficiary hereof and of the provisions of the other Loan
Documents for purposes of any reference in a Loan Document to the parties for
whom Agent is acting; it being understood and agreed that the rights and
benefits of such Bank Product Provider under the Loan Documents consist
exclusively of such Bank Product Provider's right to share in payments and
collections out of the Collateral as more fully set forth herein. In connection
with any such distribution of payments and collections, Agent shall be entitled
to assume no amounts are due to any Bank Product Provider unless such Bank
Product Provider has notified Agent in writing of the amount of any such
liability owed to it prior to such distribution.
17.6 DEBTOR-CREDITOR RELATIONSHIP. The relationship between the Lenders
and Agent, on the one hand, and the Loan Parties, on the other hand, is solely
that of creditor and debtor. No member of the Lender Group has (or shall be
deemed to have) any fiduciary relationship or duty to any Loan Party arising out
of or in connection with the Loan Documents or the transactions contemplated
thereby, and there is no agency or joint venture relationship between the
members of the Lender Group, on the one hand, and the Loan Parties, on the other
hand, by virtue of any Loan Document or any transaction contemplated therein.
17.7 COUNTERPARTS; ELECTRONIC EXECUTION. This Agreement may be executed
in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile or other electronic method of transmission shall be equally as
effective as delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile or
other electronic method of transmission also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement. The foregoing shall apply to each other Loan Document MUTATIS
MUTANDIS.
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17.8 REVIVAL AND REINSTATEMENT OF OBLIGATIONS. If the incurrence or
payment of the Obligations by Borrower or Guarantor or the transfer to the
Lender Group of any property should for any reason subsequently be asserted, or
declared, to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, or other voidable or recoverable payments
of money or transfers of property (each, a "VOIDABLE TRANSFER"), and if the
Lender Group is required to repay or restore, in whole or in part, any such
Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that the Lender
Group is required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys fees of the Lender Group related thereto, the liability
of Borrower or Guarantor automatically shall be revived, reinstated, and
restored and shall exist as though such Voidable Transfer had never been made.
17.9 CONFIDENTIALITY.
(a) Agent and Lenders each individually (and not jointly or jointly
and severally) agree that material, non-public information regarding Parent and
its Subsidiaries, their operations, assets, and existing and contemplated
business plans shall be treated by Agent and the Lenders in a confidential
manner, and shall not be disclosed by Agent and the Lenders to Persons who are
not parties to this Agreement, except: (i) to attorneys for and other advisors,
accountants, auditors, and consultants to any member of the Lender Group, (ii)
to Subsidiaries and Affiliates of any member of the Lender Group (including the
Bank Product Providers), provided that any such Persons described in clause (i)
or (ii) thereof shall have agreed to receive such information hereunder subject
to the terms of this SECTION 17.9, (iii) as may be required by statute,
decision, or judicial or administrative order, rule, or regulation, (iv) as may
be agreed to in advance by Borrower or as requested or required by any
Governmental Authority pursuant to any subpoena or other legal process, (v) as
to any such information that is or becomes generally available to the public
(other than as a result of prohibited disclosure by Agent or the Lenders), (vi)
in connection with any assignment, participation or pledge of any Lender's
interest under this Agreement, provided that any such assignee, participant, or
pledgee shall have agreed in writing to receive such information hereunder
subject to the terms of this Section, and (vii) in connection with any
litigation or other adversary proceeding involving parties hereto which such
litigation or adversary proceeding involves claims related to the rights or
duties of such parties under this Agreement or the other Loan Documents.
(b) Anything in this Agreement to the contrary notwithstanding,
Agent may provide information concerning the terms and conditions of this
Agreement and the other Loan Documents to loan syndication and pricing reporting
services.
17.10 LENDER GROUP EXPENSES. Borrower agrees to pay any and all Lender
Group Expenses promptly after demand therefor by Agent and agrees that its
obligations contained in this SECTION 17.10 shall survive payment or
satisfaction in full of all other Obligations.
17.11 USA PATRIOT ACT. Each Lender that is subject to the requirements
of the Patriot Act hereby notifies the Borrower that pursuant to the
requirements of the Act, it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Patriot Act.
17.12 INTEGRATION. This Agreement, together with the other Loan
Documents, reflects the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, before the date hereof.
[Signature pages to follow.]
-53-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name Xxxxxx Xxxxxxxx
-------------------------------------
Title: Secretary
-------------------------------------
XXXXXXX & XXXXX XXXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name Xxxxxx Xxxxxxxx
-------------------------------------
Title: Secretary
-------------------------------------
[SIGNATURE PAGE TO CREDIT AGREEMENT]
XXXXX FARGO FOOTHILL, LLC.,
a Delaware limited liability company, as
Agent and as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name Xxxxx X. Xxxxx
--------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE TO CREDIT AGREEMENT]
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND CONSTRUCTION...........................................1
1.1 Definitions......................................................1
1.2 Accounting Terms.................................................1
1.3 Code.............................................................1
1.4 Construction.....................................................1
1.5 Schedules and Exhibits...........................................2
2. LOAN AND TERMS OF PAYMENT..............................................2
2.1 Revolver Advances................................................2
2.2 [Intentionally Omitted]..........................................2
2.3 Borrowing Procedures and Settlements.............................3
2.4 Payments; Reductions of Commitments; Prepayments.................7
2.5 Overadvances....................................................11
2.6 Interest Rates and Letter of Credit Fee: Rates, Payments,
and Calculations................................................11
2.7 Crediting Payments..............................................12
2.8 Designated Account..............................................13
2.9 Maintenance of Loan Account; Statements of Obligations..........13
2.10 Fees............................................................13
2.11 Letters of Credit...............................................13
2.12 LIBOR Option....................................................16
2.13 Capital Requirements............................................18
3. CONDITIONS; TERM OF AGREEMENT.........................................19
3.1 Conditions Precedent to the Initial Extension of Credit.........19
3.2 Conditions Precedent to all Extensions of Credit................19
3.3 Term............................................................19
3.4 Effect of Termination...........................................19
3.5 Early Termination by Borrower...................................19
4. REPRESENTATIONS AND WARRANTIES........................................19
4.1 Due Organization and Qualification; Subsidiaries................20
4.2 Due Authorization; No Conflict..................................20
4.3 Governmental Consents...........................................21
4.4 Binding Obligations; Perfected Liens............................21
4.5 Title to Assets; No Encumbrances................................21
TABLE OF CONTENTS
(continued)
PAGE
4.6 Jurisdiction of Organization; Location of Chief Executive
Office; Organizational Identification Number; Commercial
Tort Claims.....................................................21
4.7 Litigation......................................................21
4.8 Compliance with Laws............................................22
4.9 No Material Adverse Change......................................22
4.10 Fraudulent Transfer.............................................22
4.11 Employee Benefits...............................................22
4.12 Environmental Condition.........................................22
4.13 Intellectual Property...........................................23
4.14 Leases..........................................................23
4.15 Deposit Accounts and Securities Accounts........................23
4.16 Complete Disclosure.............................................23
4.17 Material Contracts..............................................23
4.18 Patriot Act.....................................................23
4.19 Indebtedness....................................................24
4.20 Payment of Taxes................................................24
4.21 Margin Stock....................................................24
4.22 Governmental Regulation.........................................24
4.23 OFAC............................................................24
4.24 Parent as a Holding Company.....................................25
4.25 [Intentionally Omitted].........................................25
4.26 Other Documents.................................................25
4.27 Location of Inventory and Equipment.............................25
4.28 Inventory Records...............................................25
5. AFFIRMATIVE COVENANTS.................................................26
5.1 Financial Statements, Reports, Certificates.....................26
5.2 Collateral Reporting............................................26
5.3 Existence.......................................................26
5.4 Maintenance of Properties.......................................26
5.5 Taxes...........................................................27
5.6 Insurance.......................................................27
5.7 Inspection......................................................27
5.8 Compliance with Laws............................................27
-2-
TABLE OF CONTENTS
(continued)
PAGE
5.9 Environmental...................................................27
5.10 Disclosure Updates..............................................28
5.11 Formation of Subsidiaries.......................................28
5.12 Further Assurances..............................................29
5.13 Lender Meetings.................................................29
5.14 Material Contracts..............................................29
5.15 Location of Inventory and Equipment.............................29
6. NEGATIVE COVENANTS....................................................30
6.1 Indebtedness....................................................30
6.2 Liens...........................................................30
6.3 Restrictions on Fundamental Changes.............................30
6.4 Disposal of Assets..............................................30
6.5 Change Name.....................................................30
6.6 Nature of Business..............................................31
6.7 Prepayments and Amendments......................................31
6.8 Change of Control...............................................31
6.9 Distributions...................................................31
6.10 Accounting Methods..............................................32
6.11 Investments.....................................................32
6.12 Transactions with Affiliates....................................32
6.13 Use of Proceeds.................................................33
6.14 Parent as Holding Company.......................................33
7. FINANCIAL COVENANTS...................................................33
8. EVENTS OF DEFAULT.....................................................35
9. RIGHTS AND REMEDIES...................................................36
9.1 Rights and Remedies.............................................36
9.2 Remedies Cumulative.............................................37
10. WAIVERS; INDEMNIFICATION..............................................37
10.1 Demand; Protest; etc............................................37
10.2 The Lender Group's Liability for Collateral.....................37
10.3 Indemnification.................................................37
11. NOTICES...............................................................38
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER............................38
-3-
TABLE OF CONTENTS
(continued)
PAGE
13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS............................39
13.1 Assignments and Participations..................................39
13.2 Successors......................................................42
14. AMENDMENTS; WAIVERS...................................................42
14.1 Amendments and Waivers..........................................42
14.2 Replacement of Holdout Lender...................................43
14.3 No Waivers; Cumulative Remedies.................................44
15. AGENT; THE LENDER GROUP...............................................44
15.1 Appointment and Authorization of Agent..........................44
15.2 Delegation of Duties............................................45
15.3 Liability of Agent..............................................45
15.4 Reliance by Agent...............................................45
15.5 Notice of Default or Event of Default...........................45
15.6 Credit Decision.................................................46
15.7 Costs and Expenses; Indemnification.............................46
15.8 Agent in Individual Capacity....................................46
15.9 Successor Agent.................................................47
15.10 Lender in Individual Capacity...................................47
15.11 Collateral Matters..............................................47
15.12 Restrictions on Actions by Lenders; Sharing of Payments.........48
15.13 Agency for Perfection...........................................48
15.14 Payments by Agent to the Lenders................................49
15.15 Concerning the Collateral and Related Loan Documents............49
15.16 Audits and Examination Reports; Confidentiality;
Disclaimers by Lenders; Other Reports and Information...........49
15.17 Several Obligations; No Liability...............................50
16. WITHHOLDING TAXES.....................................................50
17. GENERAL PROVISIONS....................................................52
17.1 Effectiveness...................................................52
17.2 Section Headings................................................52
17.3 Interpretation..................................................52
17.4 Severability of Provisions......................................52
17.5 Bank Product Providers..........................................53
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TABLE OF CONTENTS
(continued)
PAGE
17.6 Debtor-Creditor Relationship....................................53
17.7 Counterparts; Electronic Execution..............................53
17.8 Revival and Reinstatement of Obligations........................53
17.9 Confidentiality.................................................53
17.10 Lender Group Expenses...........................................54
17.11 USA PATRIOT Act.................................................54
17.12 Integration.....................................................54
PAGE
EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Assignment and Acceptance
Exhibit C-1 Form of Compliance Certificate
Exhibit L-1 Form of LIBOR Notice
Schedule A-1 Agent's Account
Schedule A-2 Authorized Persons
Schedule C-1 Commitments
Schedule D-1 Designated Account
Schedule P-1 Permitted Investments
Schedule P-3 Permitted Liens
Schedule R-1 Real Property Collateral
Schedule 1.1 Definitions
Schedule 3.1 Conditions Precedent
Schedule 4.1(b) Capitalization of Borrower
Schedule 4.1(c) Capitalization of Borrower's Subsidiaries
Schedule 4.6(a) States of Organization
Schedule 4.6(b) Chief Executive Offices
Schedule 4.6(c) Organizational Identification Numbers
Schedule 4.6(d) Commercial Tort Claims
Schedule 4.7 Litigation
Schedule 4.12 Environmental Matters
Schedule 4.13 Intellectual Property
Schedule 4.15 Deposit Accounts and Securities Accounts
Schedule 4.17 Material Contracts
Schedule 4.19 Permitted Indebtedness
Schedule 4.27 Inventory and Equipment Locations
Schedule 5.1 Financial Statements, Reports, Certificates
Schedule 5.2 Collateral Reporting
