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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of August 28, 1997
among
SUNRISE MEDICAL, INC.,
THE SUBSIDIARY BORROWERS AND GUARANTORS
FROM TIME TO TIME PARTY HERETO
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged By
BANCAMERICA SECURITIES, INC.
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS............................................. 1
1.01 Defined Terms....................................................... 1
1.02 Use of Defined Terms................................................ 30
1.03 Accounting Terms.................................................... 30
1.04 Exhibits and Schedules.............................................. 31
1.05 Currency Equivalents Generally...................................... 31
1.06 References to Last Day of Fiscal Period............................. 32
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES............................................ 32
2.01 The Advances........................................................ 32
2.02 Making the Committed Advances....................................... 33
2.03 Fees................................................................ 37
2.04 Repayment of Advances............................................... 38
2.05 Interest Rate Provisions, Etc....................................... 38
2.06 Voluntary Conversions and Continuations of Committed Advances....... 44
2.07 Bid Borrowings...................................................... 46
2.08 Procedure for Bid Borrowings........................................ 47
2.09 The Swing Line...................................................... 51
2.10 Reduction of Commitments............................................ 53
2.11 Mandatory Prepayments............................................... 54
2.12 Optional Prepayments................................................ 55
2.13 Increased Costs..................................................... 55
2.14 Evidence of Debt.................................................... 57
2.15 Payments and Computations........................................... 58
2.16 Taxes............................................................... 60
2.17 Payments on Business Days........................................... 63
2.18 Sharing of Payments, Etc............................................ 64
2.19 Currency Equivalents................................................ 64
2.20 Funding Losses...................................................... 65
2.21 Use of Proceeds..................................................... 65
2.22 Funding Sources..................................................... 66
2.23 Borrower's Agent.................................................... 66
ARTICLE III
AMOUNT AND TERMS OF LETTERS OF CREDIT AND PARTICIPATIONS THEREIN............. 66
3.01 Letters of Credit................................................... 66
3.02 Issuing the Letters of Credit....................................... 67
3.03 Reimbursement Obligations........................................... 67
3.04 Participations Purchased by the Lenders............................. 68
3.05 Letter of Credit Fees............................................... 70
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3.06 Indemnification: Nature of the Issuing Lender's Duties............ 71
3.07 Increased Costs.................................................... 72
3.08 Uniform Customs and Practice....................................... 73
ARTICLE IV
CONDITIONS OF EFFECTIVENESS................................................. 73
4.01 Conditions to Initial Advances..................................... 73
4.02 Conditions Precedent to All Borrowings and All Issuances........... 75
4.03 Conditions to Effectiveness of Subsidiary Borrower Electing to
Participate After the Closing Date................................. 76
ARTICLE V
REPRESENTATIONS AND WARRANTIES.............................................. 77
5.01 Existence and Qualification; Power; Compliance With Laws........... 77
5.02 Authority; Compliance with Other Agreements and Instruments........ 77
5.03 No Governmental Approvals Required................................. 78
5.04 Subsidiaries of Borrower........................................... 78
5.05 Financial Statements............................................... 79
5.06 No Other Liabilities; No Material Adverse Effect................... 79
5.07 Title to Property.................................................. 79
5.08 Intangible Assets.................................................. 79
5.09 Governmental Regulation............................................ 79
5.10 Litigation......................................................... 79
5.11 Binding Obligations................................................ 80
5.12 ERISA.............................................................. 80
5.13 Regulations G and U................................................ 80
5.14 Disclosure......................................................... 81
5.15 Tax Liability...................................................... 81
5.16 Hazardous Materials................................................ 81
5.17 Employee Matters................................................... 81
5.18 Projections........................................................ 81
ARTICLE VI
AFFIRMATIVE COVENANTS....................................................... 82
6.01 Financial and Business Information................................. 82
6.02 Payment of Taxes and Other Potential Liens......................... 85
6.03 Preservation of Existence.......................................... 85
6.04 Maintenance of Properties.......................................... 85
6.05 Maintenance of Insurance........................................... 86
6.06 Compliance With Laws............................................... 86
6.07 Inspection Rights.................................................. 86
6.08 Keeping of Records and Books of Account............................ 86
6.09 Compliance With Agreements......................................... 86
6.10 Hazardous Materials Laws........................................... 86
6.11 Additional Guarantors After the Closing Date....................... 87
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ARTICLE VII
NEGATIVE COVENANTS.......................................................... 87
7.01 Disposition of Property............................................ 88
7.02 Mergers............................................................ 88
7.03 Investments and Acquisitions....................................... 89
7.04 Hostile Tender Offers.............................................. 89
7.05 ERISA.............................................................. 89
7.06 Liens; Negative Pledges; Sales and Leasebacks...................... 90
7.07 Indebtedness....................................................... 91
7.08 Conduct of Business................................................ 92
7.09 Leverage Ratio..................................................... 92
7.11 Interest Coverage Ratio............................................ 93
7.12 Contingent Obligations............................................. 93
7.13 Limitations on Restrictions Affecting Dividends and Other
Payments by Subsidiaries........................................... 94
7.14 Restricted Junior Payments......................................... 94
7.15 Transactions with Affiliates....................................... 95
7.16 Subsidiaries....................................................... 95
7.17 Lease Obligations.................................................. 95
ARTICLE VIII
GUARANTY.................................................................... 96
8.01 Guaranty........................................................... 96
8.02 No Impairment of Guaranties........................................ 97
8.03 Continuation and Reinstatement, Etc................................ 98
8.04 Guarantied Amount.................................................. 99
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES UPON EVENTS OF DEFAULT....................... 99
9.01 Events of Default.................................................. 99
9.02 Remedies Upon Event of Default..................................... 101
ARTICLE X
THE AGENT................................................................... 103
10.01 Appointment and Authorization.................................... 103
10.02 Delegation of Duties............................................. 103
10.03 Liability of Agent............................................... 104
10.04 Reliance by Agent................................................ 104
10.05 Notice of Default................................................ 105
10.06 Credit Decision.................................................. 105
10.07 Indemnification.................................................. 106
10.08 Agent in Individual Capacity..................................... 106
10.09 Successor Agent.................................................. 107
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Section Page
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ARTICLE XI
MISCELLANEOUS............................................................... 107
11.01 Cumulative Remedies; No Waiver................................... 107
11.02 Amendments; Consents............................................. 108
11.03 Costs, Expenses and Taxes........................................ 108
11.04 Nature of Lender's Obligations................................... 109
11.05 Survival of Representations and Warranties....................... 110
11.06 Notices.......................................................... 110
11.07 Execution in Counterparts........................................ 110
11.08 Binding Effect; Assignment....................................... 111
11.09 Indemnity by Loan Parties........................................ 115
11.10 Hazardous Materials Indemnity.................................... 116
11.11 Nonliability of Lenders.......................................... 117
11.12 Confidentiality.................................................. 118
11.13 No Third Parties Benefited....................................... 118
11.14 Right of Setoff.................................................. 119
11.15 Judgment Currency................................................ 119
11.16 Further Assurances............................................... 119
11.17 Integration...................................................... 120
11.18 Governing Law.................................................... 120
11.19 Severability of Provisions....................................... 120
11.20 Headings......................................................... 120
11.21 Conflict in Loan Documents....................................... 120
11.22 WAIVER OF TRIAL BY JURY.......................................... 120
11.23 PURPORTED ORAL AMENDMENTS........................................ 121
11.24 Amendment and Restatement of Existing Credit Agreement........... 121
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is
entered into as of August 28, 1997 by and among Sunrise Medical, Inc., a
Delaware corporation ("Sunrise" or "Borrower"), the subsidiaries of Borrower
from time to time signatory to this Agreement as "Subsidiary Borrowers" or
"Guarantors," Bank of America National Trust and Savings Association, a national
banking association, and the other banks signatory to this Agreement together
with each bank which may hereafter execute and deliver the Commitment Assignment
and Acceptance herein described (collectively, the "Lenders"), and Bank of
America National Trust and Savings Association, as agent for the Lenders (in
such capacity, "Agent").
RECITALS
A. The Borrower, the lenders party thereto, the subsidiary borrowers
and guarantors thereunder and Agent entered into a Credit Agreement dated as of
December 12, 1991, as amended, which agreement was amended and restated by a
First Amended and Restated Credit Agreement dated as of August 17, 1994, as
amended, among the Borrower, the subsidiary borrowers and guarantors thereunder,
the lenders parties thereto and Agent, as further amended and restated by a
Second Amended and Restated Credit Agreement dated as of September 29, 1995, as
amended, among the Borrower, the subsidiary borrowers and guarantors thereunder,
the lenders parties thereto and Agent (the "Existing Credit Agreement").
B. By this Agreement the Existing Credit Agreement is amended and
restated on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth respectively after each:
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"ABSOLUTE RATE" has the meaning specified in Section 2.08(c).
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.08.
"ABSOLUTE RATE BID ADVANCE" means a Bid Advance that bears interest at
a rate determined with reference to the Absolute Rate.
"ACCUMULATED FUNDING DEFICIENCY" shall mean an accumulated funding
deficiency as defined in Section 302 of ERISA and Section 412 of the Code.
"ACQUISITION" means any transaction, or any series of related
transactions, by which a Person directly or indirectly (a) acquires any ongoing
business or all or substantially all of the assets of any firm, partnership,
joint venture, corporation or division thereof engaged in an ongoing business,
whether through purchase of assets, merger or otherwise, (b) acquires control of
at least a majority of the securities which have ordinary voting power for the
election of directors of a corporation engaged in an ongoing business or (c)
acquires control of a 50% or more ownership interest in any partnership or joint
venture engaged in an ongoing business.
"ADJUSTED CASH FLOW" means, as of the last day of any Fiscal Quarter,
Consolidated Net Income for the four Fiscal Quarters then ending PLUS (a)
depreciation, amortization and other non-Cash expenses (but excluding deferred
taxes), non-Cash amounts relating to non-recurring items to the extent that they
will not result in a future cash outflow of Borrower and its Subsidiaries for
that fiscal period, PLUS (b) Interest Charges expensed during that fiscal
period, MINUS (c) Capital Expenditures made by Borrower or any Subsidiary during
that fiscal period net of asset dispositions in the ordinary course of business
and MINUS (d) the aggregate dividends made by Borrower to its shareholders and
by any Subsidiary which is not a Wholly-Owned Subsidiary to its minority
shareholders, during that fiscal period. Each of the foregoing components of
Adjusted Cash Flow shall be computed without duplication and, in the case of
clauses (a) and (b), only to the extent included in determining Consolidated Net
Income for such fiscal period.
"ADJUSTED DOLLAR EQUIVALENT" means, with respect to Intangible Assets
acquired in Acquisitions completed on or prior to December 29, 1995, the Dollar
equivalent of such assets utilized by the Company in its books and records as of
December 29, 1995; and, with respect to Intangible Assets acquired in
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Acquisitions completed after December 29, 1995, the Dollar equivalent of such
assets utilized by the Company in its books and records as of the date such
Intangible Asset was acquired. In each case, for purposes of this Agreement, no
subsequent adjustments shall be made to the Dollar equivalent of Intangible
Assets as a result of subsequent fluctuations in foreign currency exchange rates
used to translate Intangible Assets denominated in foreign currencies.
"ADVANCE" means a Committed Advance, a Swing Line Advance or a Bid
Advance.
"AFFILIATE" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "CONTROL" (including, with its
correlative meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise); provided
that, in any event, any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation that has more than 300 record holders of
such securities or 5% or more of the partnership or other ownership interests of
any other Person that has more than 300 record holders of such interests will be
deemed to control such corporation or other Person.
"AGENT" means Bank of America National Trust and Savings Association,
as agent for the Lenders hereunder and under the other Loan Documents, and each
successor agent.
"AGENT'S ACCOUNT" means, with respect to any payments to be made in
Dollars, the Agent's account maintained at the office of the Agent at Bank of
America, Concord, California, ABA 000-000-000, Attention: Agency Administrative
Services #5596, Account No. 12339-15444 Ref.: Sunrise Medical, Inc., or such
other account (located in the United States) as the Agent may from time to time
specify in writing to the Borrower and the Lenders and, with respect to any
payments to be made in any Alternative Currency, those accounts indicated on
Schedule 1.01(a) hereto, or, in each case, such other account as the Agent may
from time to time specify in writing to the Borrowers and the Lenders.
"AGENT'S OFFICE" means the office of Bank of America National Trust
and Savings Association set forth on Schedule 11.06 under Agent or such other
office as Agent may designate in writing to the Borrower and the Lenders.
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"AGENT-RELATED PERSONS" means Bank of America and any successor agent
arising under Section 10.09, together with their respective Affiliates, and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"AGREEMENT" means this Third Amended and Restated Credit Agreement,
either as originally executed or as it may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"ALTERNATIVE CURRENCIES" means Pounds Sterling, Canadian Dollars,
Danish Krone, Deutsche Marks, Dutch Guilders, Spanish Pesetas, Swiss Francs,
French Francs, Belgian Francs, Italian Lira, ECU, Swedish Krona, Norwegian
Krone, Portuguese Escudo, Australian Dollars, Japanese Yen and any other freely
available currency notified to Agent upon not less than 10 Business Days'
notice.
"ALTERNATIVE CURRENCY SUBLIMIT" means $150,000,000.
"AMORTIZATION AMOUNT" means for the Amortization Date occurring on
January 15, 1999, $15,000,000 (reflecting an earlier prepayment by the Borrower)
and for each Amortization Date thereafter, $20,000,000; provided, however, if
the Final Maturity Date is extended pursuant to Section 2.10(c), the
Amortization Amount otherwise applicable for each year between the date of the
effectiveness of such extension and the Final Maturity Date shall similarly be
extended one year.
"AMORTIZATION DATE" means, subject to Section 2.10(b), January 15,
1999 and January 15 of each year thereafter.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance.
"APPLICABLE MARGIN" means, (a) with respect to each Eurocurrency Rate
Committed Advance, the incremental percentage to be added to the quoted interest
rate based on the then applicable Leverage Ratio in accordance with the
following schedule, (b) with respect to the Standby Letter of Credit fees
referred to in Section 3.05(a), the fee based on the then applicable Leverage
Ratio in accordance with the following schedule and (c) with respect to the
commitment fee referred to in Section 2.03(b), the fee based on the then
applicable Leverage Ratio in accordance with the following schedule:
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APPLICABLE MARGIN
(1) (2) (3)
Eurocurrency Rate
Committed Advances
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Leverage Standby Commitment
Ratio Letter of Credit fees Fee
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(a) (b)
EFFECTIVE EFFECTIVE ON
UNTIL AND AFTER
RECEIPT OF RECEIPT OF
6/30/98 6/30/98
COMPLIANCE COMPLIANCE
CERTIFICATE CERTIFICATE
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LESS THAN 1.75:1 0.450% 0.450% 0.150%
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GREATER THAN OR EQUAL TO 1.75:1 but LESS THAN 2.25:1 0.550% 0.550% 0.175%
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GREATER THAN OR EQUAL TO 2.25:1 but LESS THAN 2.75:1 0.625% 0.625% 0.200%
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GREATER THAN OR EQUAL TO 2.75:1 but LESS THAN 3.25:1 .900% 0.750% 0.250%
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GREATER THAN OR EQUAL TO 3.25:1 but LESS THAN 3.50:1 1.375% 1.000% 0.300%
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GREATER THAN OR EQUAL TO 3.50:1 but LESS THAN OR EQUAL TO 3.75:1 1.750% 1.250% 0.375%
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Any change in the Applicable Margin shall be effective upon receipt by
the Agent from a Senior Officer of the Borrower of a Compliance Certificate
demonstrating such fact; provided that, with respect to Eurocurrency Rate
Committed Advances, the new Applicable Margin with respect to each such Advance
shall be effective upon the earlier of (i) the termination of the then existing
Interest Period with respect thereto and (ii) the next interest payment date for
such Advance; and with respect to Standby Letters of Credit and the commitment
fee, such change in the Applicable Margin shall be effective immediately;
PROVIDED, HOWEVER, that commencing on the Closing Date until the next Applicable
Margin adjustment date determined as set forth above occurring on or after the
date the Agent receives the Compliance Certificate for the Fiscal Quarter ending
December 31, 1997, the Applicable Margin for Eurocurrency Rate Committed
Advances and fees for Standby Letters of Credit shall be no lower than 1.375%
per annum, and the Applicable Margin for the commitment fee shall be no lower
than 0.300% per annum.
The Applicable Margin for Eurocurrency Rate Committed Advances and
Standby Letter of Credit fees shall be determined by reference to Column 2(a)
until the Applicable Margin adjustment date determined as set forth in the
preceding paragraph occurring
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on or after the date the Agent receives a Compliance Certificate for the
Fiscal Quarter ending June 30, 1998. Thereafter, the Applicable Margin for
Eurocurrency Rate Committed Advances and Standby Letter of Credit fees shall
be determined by reference to Column 2(b).
"ARRANGER" means BancAmerica Securities, Inc.
"BANK OF AMERICA" means Bank of America National Trust and Savings
Association in its capacity as a Lender.
"BASE RATE" means a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest publicly
announced from time to time by Bank of America in San Francisco, California, as
its reference rate. It is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.
"BASE RATE ADVANCE" means an Advance denominated in Dollars which
bears interest as provided in Section 2.05(a).
"BID ADVANCE" means an Advance by a Lender to the Borrower under
Section 2.07, which may be a Eurocurrency Rate Bid Advance or an Absolute Rate
Bid Advance.
"BID ADVANCE NOTE" means each promissory note, substantially in the
form of Exhibit B, executed and delivered by the Borrower to a Lender pursuant
to Section 2.14(c).
"BID BORROWING" means a Borrowing consisting of one or more Bid
Advances made to the Borrower on the same day by one or more Lenders.
"BORROWER" means Sunrise and its successors and permitted assigns;
provided, however, as used in Article II (other than in Sections 2.07, 2.08 and
2.09), Article III and Section 11.24, "Borrowers" or a reference to "a Borrower"
shall be deemed to mean and include, collectively, Sunrise and each Subsidiary
Borrower.
"BORROWING" means a borrowing consisting of Advances of the same
Interest Type made to the Borrower on the same day by the Lenders under Article
II, and may be a Committed Borrowing, a Bid Borrowing or a Swing Line Advance.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in the City of New York,
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the City of San Francisco or the City of Los Angeles and, with respect to
Eurocurrency Rate Advances, a day on which dealings are carried on in the
London interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Rate Advance.
"CAPITAL EXPENDITURE" means any expenditure that is considered a
capital expenditure under Generally Accepted Accounting Principles, including
any amount which is required to be treated as an asset subject to a Capital
Lease.
"CAPITAL LEASE" means, as to any Person, a lease of any property by
that Person as lessee that is, or should be in accordance with Generally
Accepted Accounting Principles (including Financial Accounting Standards Board
Statement No. 13, as amended or superseded from time to time), recorded as a
"capital lease" on a balance sheet of that Person prepared in accordance with
Generally Accepted Accounting Principles.
"CASH" means all monetary items (including currency, coin and bank
demand deposits) that are treated as cash under Generally Accepted Accounting
Principles.
"CASH EQUIVALENTS" means, when used in connection with any Person,
that Person's Investments in:
(a) Government Securities due within one year of the making of
the Investment;
(b) direct obligations of any State of the United States of
America or any political subdivision of any such State given on the date of
such investment a credit rating of at least A by Xxxxx'x or A by S&P, in
each case due within one year from the making of the Investment;
(c) certificates of deposit issued by, deposits in, eurodollar
deposits through, bankers' acceptances of, and repurchase and reverse
repurchase agreements covering Government Securities executed by, (i) any
Lender or (ii) any bank doing business in and incorporated under the laws
of the United States of America or any State thereof whose deposits are
insured through the Federal Deposit Insurance Corporation, or any successor
thereto, and having on the date of such Investment combined capital,
surplus and undivided profits of at least $1,000,000,000 and having a
credit rating of at least A by Xxxxx'x or A by S&P, in each case due within
one year after the date of the making of the Investment;
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(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, banker's acceptances of and repurchase and
reverse repurchase agreements covering Government Securities executed by,
any branch or office located in the United States of America of (i) any
Lender or (ii) any bank incorporated under the laws of any jurisdiction
outside the United States of America whose deposits in the United States of
America are insured through the Federal Deposit Insurance Corporation, or
any successor thereto, and having on the date of such Investment combined
capital, surplus and undivided profits of at least $2,000,000,000 and
having a credit rating of at least A by Xxxxx'x or A by S&P, in each case
due within one year after the date of the making of the Investment;
(e) commercial paper of corporations doing business in and
incorporated under the laws of the United States of America or any State
thereof given on the date of such Investment a credit rating of at least
A-1 by Xxxxx'x, P-1 by S&P or the highest available rating of any other
national rating agency acceptable to the Agent, in each case due within 270
days after the making of the Investment;
(f) in the case of Investments made by a Foreign Subsidiary,
investment grade securities of the highest rating available in the
jurisdiction in which such Investment is made; and
(g) domestic money market funds as defined in rule 2a-7 under the
Investment Company Act of 1940, as amended, advised and managed by an
organization managing assets valued in excess of $500,000,000 and
registered with the Securities and Exchange Commission as an investment
advisor under the Investment Advisors Act of 1940 and investing primarily
in other types of permitted Cash Equivalents; PROVIDED that any such
investment requires or permits such Person, at its option, to require
repayment on an overnight basis.
"CERTIFICATE OF EXTENSION" means a certificate with respect to the
extension of the Final Maturity Date substantially in the form of Exhibit D,
signed by each Lender, and properly completed to provide all information
required to be included therein.
"CHANGE OF CONTROL" means the occurrence, after the date of this
Agreement, of any Person or two or more Persons acting in concert acquiring
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) (a "13D Group")
but
- 8 -
excluding Xxxxxxx Xxxxxxxx or a 13D Group of which Xxxxxxx Xxxxxxxx is a
member, directly or indirectly, of securities of the Borrower (or other
securities convertible into such securities) representing, together with the
securities already held by such Person or Persons, 25% or more of the
combined voting power of all securities of the Borrower entitled to vote in
the election of directors.
"CHANGE OF OWNERSHIP" means Xxxxxxx Xxxxxxxx (together with the 13D
Group of which Xxxxxxx Xxxxxxxx is a member) selling or transferring securities
of the Borrower representing (in the aggregate for all such sales or transfers
after the Closing Date) 25% or more of the combined voting power of all
securities of the Borrower entitled to vote in the election of directors owned
by such 13D Group as of the Closing Date; provided however, transfers among
members of such affiliated group shall be excluded for purposes of any such
determination, and PROVIDED, FURTHER, that no Change of Ownership will be deemed
to occur on or after the death of Xxxxxxx Xxxxxxxx.
"CLOSING DATE" means the time and Business Day on which the conditions
set forth in Section 4.01 are satisfied or waived pursuant to Section 11.01.
"CODE" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"COMMERCIAL LETTER OF CREDIT" means a commercial letter of credit in
the customary form used by the Issuing Lender, issued by the Issuing Lender
pursuant to Section 3.01, either as originally issued or as the same from time
to time may be supplemented, modified, amended, renewed or extended.
"COMMITMENT" means, at any time for any Lender, the amount set forth
opposite such Lender's name on Schedule 1.01(b) hereto, as such amount may be
reduced or reinstated from time to time pursuant to the terms of this Agreement.
"COMMITMENT ASSIGNMENT AND ACCEPTANCE" means a Commitment Assignment
and Acceptance executed by a Lender and an Eligible Assignee substantially in
the form of Exhibit C and registered with the Agent pursuant to
Section 11.08(e).
"COMMITTED ADVANCE" means an advance by a Lender to the Borrower
pursuant to Section 2.01(a), which advance may be a Base Rate Advance or a
Eurocurrency Rate Committed Advance.
"COMMITTED ADVANCE NOTE" means each promissory note, substantially in
the form of Exhibit A, executed and delivered by
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the Borrower or a Subsidiary Borrower to a Lender at the request of such
Lender pursuant to Section 2.14(b).
"COMMITTED BORROWING" means a borrowing consisting of Committed
Advances of the same Interest Type made on the same Business Day pursuant to the
provisions of Section 2.02(a). The number of Borrowings that may be outstanding
at any one time is limited by Section 2.05(b) hereof.
"COMPETITIVE BID" means an offer by a Lender to make a Bid Advance in
accordance with Section 2.08(c).
"COMPETITIVE BID REQUEST" has the meaning specified in
Section 2.08(a).
"COMPLIANCE CERTIFICATE" means a compliance certificate in the form of
Exhibit I signed, on behalf of Borrower, by a Senior Officer of Borrower.
"CONSOLIDATED EBITDA" means, for any period for the Borrower and its
Subsidiaries, an amount equal to the sum of (a) Consolidated Net Income,
(b) Interest Charges, (c) the amount of taxes, based on or measured by income,
used or included in the determination of Consolidated Net Income and (d) the
amount of depreciation and amortization expense deducted in determining
Consolidated Net Income, all determined in conformity with Generally Accepted
Accounting Principles.
"CONSOLIDATED FUNDED INDEBTEDNESS" means, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations and liabilities, whether current or long-term, for
borrowed money (including extensions of credit hereunder), (b) that portion of
obligations with respect to capital leases which is capitalized in the
consolidated balance sheet of the Borrower and its Subsidiaries and (c) all
Contingent Obligations of the Borrower and its Subsidiaries with respect to
Indebtedness of Persons other than the Borrower or any of its Subsidiaries
(without duplication), all determined in conformity with Generally Accepted
Accounting Principles.
"CONSOLIDATED NET INCOME" means, with respect to any fiscal period,
the consolidated net income of the Borrower and its Subsidiaries from continuing
operations after extraordinary items (excluding gains or losses from
Dispositions of assets) for that period, determined in accordance with Generally
Accepted Accounting Principles consistently applied.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of any date of
determination, Shareholders' Equity of the Borrower and its
- 10 -
Subsidiaries on that date, EXCLUDING the cumulative translation adjustment
reported for each applicable Fiscal Quarter, commencing with the Fiscal
Quarter ending March 29, 1996, MINUS the Adjusted Dollar Equivalent of any
Intangible Assets of Borrower and its Subsidiaries on that date PLUS the
after-tax amount of up to $19,000,000 in pre-tax non-recurring charges
exclusive of any portion related to the write-off of Intangible Assets
incurred in the Fiscal Quarter ended June 28, 1996.
"CONSOLIDATED TOTAL ASSETS" means, as of any date of determination,
the consolidated total assets of the Borrower and its Subsidiaries determined in
accordance with Generally Accepted Accounting Principles.
"CONTINGENT OBLIGATION" means, as to any Person, any (a) direct or
indirect guaranty of Indebtedness of, or other obligation performable by, any
other Person, including any endorsement (other than for collection or deposit in
the ordinary course of business), co-making or sale with recourse of the
obligations of any other Person or (b) assurance given to an obligee with
respect to the performance of an obligation by, or the financial condition of,
any other Person, whether direct, indirect or contingent, including any purchase
or repurchase agreement covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person, or any
"keep-well" or similar arrangement of whatever nature having the effect of
assuring or holding harmless any obligee against loss with respect to any
obligation of such other Person. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation (unless the Contingent Obligation is limited by its
terms to a lesser amount, in which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Person in good faith.
"CONTINUE," "CONTINUATION" and "CONTINUED" each refer to a
continuation of Committed Advances of Dollars or an Alternative Currency, as the
case may be, comprising the same Committed Borrowing, as Committed Advances
denominated in the same currency for a specified Interest Period.
"CONTINUING LETTERS OF CREDIT" has the meaning set forth in Section
3.01.
"CONTRACTUAL OBLIGATION" means, as to any Person, any obligation under
any outstanding securities issued by that Person or any material agreement,
instrument or undertaking to which
- 11 -
that Person is a party or by which it or any of its property is bound.
"CONVERT," "CONVERSION" and "CONVERTED" each refers to a conversion of
Committed Advances of one Interest Type into Committed Advances of another
Interest Type pursuant to Section 2.06(a).
"CURRENT MATURITIES OF LONG-TERM DEBT" means, as of any date of
determination, all payments of principal due under the terms of any long-term
Indebtedness within 12 calendar months after such date, determined in accordance
with Generally Accepted Accounting Principles as reported in the Borrower's SEC
filing for the period of determination; provided, however, that the current
maturity of Indebtedness incurred hereunder shall, for purposes of calculating
the Interest Coverage Ratio, be deemed to be $5,000,000 during the twelve months
preceding the Final Maturity Date.
"DEBT SERVICE" means, as of the last day of each Fiscal Quarter,
Interest Charges during the four Fiscal Quarters then ending plus the Current
Maturities of Long-Term Debt.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States of
America, as amended from time to time, and all other applicable dissolution,
liquidation, conservatorship, bankruptcy, moratorium, readjustment of debt,
compromise, rearrangement, receivership, insolvency, reorganization or similar
debtor relief laws from time to time in effect affecting the rights of creditors
generally.
"DEFAULT" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.01, or both, would be an Event
of Default.
"DEFAULT RATE" means the Base Rate plus 2%.
"DESIGNATED BIDDER" means (a) an Eligible Assignee or (b) a special
purpose corporation that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and that issues (or
the parent of which issues) commercial paper rated at least "Prime-1" (or the
then equivalent grade) by Xxxxx'x or "A-1" (or the equivalent grade) by S&P
that, in either case, (x) is organized under the laws of the United States or
any state thereof, (y) shall have been designated as such pursuant to Section
2.07(b) and (z) is not otherwise a Lender.
"DISPOSITION" means the sale, transfer or other disposition in any
single transaction or series of related
- 12 -
transactions of any asset, or group of related assets, of Borrower or any of
its Subsidiaries, other than (a) the disposition of Cash and (b) the
disposition of equipment (i) that has become obsolete or (ii) that is
replaced by equipment performing substantially the same function not later
than 90 days after such sale or disposition.
"DOLLARS" or "$" means United States of America dollars.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" under its name
on Schedule 11.06 hereto or on Schedule I to the Commitment Assignment and
Acceptance pursuant to which it became a Lender, or such other office or
Affiliate of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"DOMESTIC SUBSIDIARIES" means those Subsidiaries of any Borrower which
are incorporated under the laws of any State of the United States and which are
engaged in business primarily in the United States, other than Subsidiaries
which are Subsidiaries of a Foreign Subsidiary.
"ELECTION TO PARTICIPATE" means a certificate of election, in the form
of Exhibit G, to be executed by a Foreign Subsidiary which is to become a
Subsidiary Borrower.
"ELIGIBLE ASSIGNEE" means, as of the date of any Commitment Assignment
and Acceptance, (a) a commercial bank organized under the laws of the United
States of America, or any State thereof, and having at that date total assets in
excess of $1,000,000,000, (b) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having at that date total assets in excess of $2,000,000,000 provided that such
bank is acting through a branch, subsidiary or agency located in the United
States of America, (c) the central bank of any country which is a member of the
OECD, and (d) any Affiliate (other than an individual) of a bank described in
any of the foregoing clauses which is engaged in the business of commercial
banking.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto, as amended or replaced and as in effect
from time to time.
"ERISA AFFILIATE" means, with respect to any Person, any Person (or
any trade or business, whether or not
- 13 -
incorporated) that is under common control with that Person within the
meaning of Sections 414(b) and (c) of the Code.
"EUROCURRENCY AUCTION" means a solicitation of Competitive Bids
setting forth a Eurocurrency Rate Bid Margin pursuant to Section 2.08.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office" on
Schedule 11. 06 hereto or on Schedule I to the Commitment Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office or Affiliate of
such Lender as such Lender may from time to time specify to the Borrower and the
Agent.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
promulgated by the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EUROCURRENCY RATE" means, for each Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, a rate of
interest per annum equal at all times during such Interest Period to the rate
per annum obtained by dividing (i) the rate of interest determined solely by the
Agent to be equal to the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the rates
per annum at which deposits in Dollars (in the case of a Eurocurrency Rate
Advance denominated in Dollars) or the relevant Alternative Currency (in the
case of a Eurocurrency Rate Advance denominated in an Alternative Currency) are
offered by Bank of America to prime banks in the London interbank market at or
about 11:00 A.M. (London time) two Business Days before the first day of such
Interest Period for a period equal to such Interest Period and, (A) in the case
of a Committed Borrowing, in an amount approximately equal to Bank of America's
Eurocurrency Rate Advance comprising part of such Committed Borrowing, and (B)
in the case of a Bid Borrowing, in an amount substantially equal to the
aggregate amount of such Bid Borrowing requested by the Borrower, by (ii) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period. The determination by the Agent of the Eurocurrency Rate shall
be conclusive in the absence of manifest error.
"EUROCURRENCY RATE ADVANCE" means an Advance denominated in Dollars
which bears interest as provided in Section 2.05(d), an Advance denominated in
an Alternative Currency which bears interest as provided in Section 2.05(e), or
- 14 -
a Bid Advance which bears interest based on the Eurocurrency Rate.
"EUROCURRENCY RATE BID ADVANCE" means a Bid Advance denominated in
Dollars made which bears interest based on the Eurocurrency Rate.
"EUROCURRENCY RATE BID MARGIN" has the meaning specified in subsection
2.08(c)(ii)(C).
"EUROCURRENCY RATE COMMITTED ADVANCE" means a Committed Advance
denominated in Dollars which bears interest as provided in Section 2.05(d) or an
Advance denominated in an Alternative Currency which bears interest as provided
in Section 2.05(e).
"EUROCURRENCY RATE RESERVE PERCENTAGE" for each Interest Period for
each Eurocurrency Rate Advance means the reserve percentage applicable during
such Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or any successor or, in the case of
Eurocurrency Rate Advances denominated in Pounds Sterling, the reserve
percentage applicable during such Interest Period under regulations issued from
time to time by the Lender of England or any successor or, in the case of
Eurocurrency Rate Advances denominated in other foreign currencies, the reserve
percentage applicable during such Interest Period under regulations issued from
time to time by such other foreign central bank or any successors thereto (or,
in each case, if different percentages shall be applicable during different
periods within such Interest Period, the daily average of such percentages
during such Interest Period) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for the Agent with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"EVENT OF DEFAULT" has the meaning set forth for that term in
Section 9.01.
"EXCLUDED TAXES" has the meaning set forth for that term in
Section 2.16.
"EXISTING CREDIT AGREEMENT" means the Second Amended and Restated
Credit Agreement dated as of September 29, 1995 among the Borrower, the
subsidiary borrowers and guarantors thereunder, the lenders parties thereto and
Bank of America National Trust and Savings Association, as agent, as amended.
"EXTRAORDINARY CAPITAL EXPENDITURES' means Capital Expenditures
actually incurred in each fiscal period set forth
- 15 -
below not exceeding the amount set forth opposite such fiscal period:
Extraordinary
Capital
Fiscal Period Expenditures
--------------------------------------- ------------
Fiscal Quarter ending December 26, 1996 $5,000,000
Fiscal Quarter ending March 28, 1997 $5,800,000
Fiscal Quarter ending June 27, 1997 $3,700,000
Fiscal year ending June 30, 1998 $4,600,000
"FACILITY USAGE" means, as of any date of determination, the sum of
(a) the Outstanding Advances plus (b) the aggregate Letter of Credit Liability
plus (c) the Restricted Commitment Amount.
"FEDERAL FUNDS RATE" means, as of any date of determination, the rate
per annum (rounded upwards, if necessary, to the nearest one-hundredth (1/100th)
of one percent (1%)), equal to the weighted average of the rates of overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such date as published by the Federal Reserve Lender
of San Francisco on the Business Day immediately following such date; provided,
however, that: (a) if the date for which such rate is to be determined is not a
Business Day, the Federal Funds Rate for such date shall be such rate on such
transactions on the immediately preceding Business Day as published on the
immediately following Business Day; and (b) if such rate is not published for
any Business Day, the Federal Funds Rate for such date shall be the average of
the quotations for such date on such transactions received by the Agent from
three (3) federal funds brokers of recognized standing selected by the Agent.
"FINAL MATURITY DATE" means January 14, 2001, or such later date as
may then be in effect pursuant to Section 2.10(c).
"FISCAL QUARTER" means each of the four 13 or 14 week fiscal quarters
of Borrower ending on a Friday on or about each September 30, December 31, March
31 and June 30.
"FISCAL YEAR" means the 52 or 53-week fiscal year of Borrower ending
on a Friday on or about each June 30.
"FOREIGN SUBSIDIARIES" means those Subsidiaries of any Borrower which
are not Domestic Subsidiaries.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any date of
determination, accounting principles referenced as
- 16 -
"generally accepted" in then currently effective Statements of the Auditing
Standards Board of the American Institute of Certified Public Accountants, or
if such statements are not then in effect, accounting principles that are
then approved by a significant segment of the accounting profession in the
United States of America, including in each case, the materiality standards
as generally accepted. The term "CONSISTENTLY APPLIED," as used in
connection therewith, means that the accounting principles applied are
consistent in all material respects to those applied for the prior period.
"GOVERNMENTAL AGENCY" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental agency, authority, board, bureau, commission, department, or
instrumentality, (c) any court or administrative tribunal, (d) any
non-governmental agency or entity that is vested by a governmental agency with
applicable jurisdiction over a Person, or (e) any arbitration tribunal or other
non-governmental authority to whose jurisdiction a Person has given its general
consent.
"GOVERNMENT SECURITIES" means direct full faith and credit obligations
of the United States of America or obligations unconditionally guarantied by the
full faith and credit of the United States of America.
"GUARANTOR" means the Borrower and each Domestic Subsidiary of the
Borrower which has executed this Agreement as a "Guarantor," as identified on
the signature pages hereto, and each Domestic Subsidiary of the Borrower which
becomes a guarantor pursuant to Section 6.11.
"GUARANTY" means the Guaranty set forth in Article VIII hereof.
"HAZARDOUS MATERIALS" means substances regulated as hazardous or toxic
substances or pollutants pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., or
under any other applicable Hazardous Materials Law, in each case as such laws
are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all applicable federal and state laws
governing the use, disposal or remediation of Hazardous Materials.
"INDEBTEDNESS" means, as to any Person (without duplication), (a) all
indebtedness of such Person for borrowed money, (b) that portion of the
obligations of such Person under
- 17 -
Capital Leases which is properly recorded as a liability on a balance sheet
of such Person prepared in accordance with Generally Accepted Accounting
Principles, (c) any obligation of such Person that is evidenced by a
promissory note or other instrument representing an extension of credit
(other than trade or other accounts payable in the ordinary course of
business in accordance with customary terms) to such Person, whether or not
for borrowed money, (d) any obligation of such Person for the deferred
purchase price of property or services (other than trade or other accounts
payable in the ordinary course of business in accordance with customary
terms), (e) any obligation of any Person that is secured by a Lien on assets
of such Person, whether or not that Person has assumed such obligation, but
only to the extent of the fair market value of the assets so subject to the
Lien, (f) obligations of such Person arising under acceptance facilities or
under facilities for the discount of accounts receivable of such Person, (g)
obligations of such Person for unreimbursed draws under letters of credit
issued for the account of such Person, (h) any net obligation of such Person
under a Swap Agreement, (i) any obligation of such Person for the unfunded
portion of any pension liability arising under any Plan, (j) any obligation
of such Person arising under any foreign currency hedging transactions, and
(k) all preferred stock of such Person which is subject to a sinking fund
payment or other mandatory redemption or payment (whether fixed or
contingent).
"INDEMNIFIED LIABILITIES" has the meaning given that term in Section
11.09.
"INTANGIBLE ASSETS" means assets that are considered to be intangible
assets under Generally Accepted Accounting Principles, including customer lists,
goodwill, computer software, copyrights, trade names, trade marks, patents,
unamortized deferred charges, unamortized debt discount and capitalized research
and development costs.
"INTERCOMPANY INDEBTEDNESS" means any indebtedness of the Borrower or
any Subsidiary of the Borrower which, in the case of the Borrower, is owing to
any of its Subsidiaries and which, in the case of any Subsidiary of the
Borrower, is owing to the Borrower or any other Subsidiary of the Borrower.
"INTEREST CHARGES" means, as of the last day of any fiscal period, the
sum of (a) all interest, premium payments, fees, charges and related expenses
payable by Borrower and its Subsidiaries with respect to that fiscal period to a
lender in connection with borrowed money (including capitalized interest), or to
a seller in connection with the deferred purchase price of assets, in each case,
that is treated as interest in accordance with Generally Accepted Accounting
Principles, plus (b) the
- 18 -
portion of rent payable by Borrower and its Subsidiaries with respect to that
fiscal period under Capital Leases that should be treated as interest in
accordance with Generally Accepted Accounting Principles.
"INTEREST COVERAGE RATIO" means the ratio obtained by dividing
Adjusted Cash Flow (excluding Extraordinary Capital Expenditures as of September
27, 1997 through March 31, 1999, inclusive) by Debt Service, calculated
quarterly on a rolling four-quarter basis .
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Advance
or, with respect to Eurocurrency Rate Committed Advances, the effective date of
any Notice of Conversion/Continuance with respect to such Advance, and ending on
the last day of the period selected by the Borrower or a Subsidiary Borrower
pursuant to the provisions below. The duration of each such Interest Period
shall be (i) in the case of a Eurocurrency Rate Committed Advance comprising
part of the same Borrowing and denominated in Dollars, 1, 2, 3 or 6 months (or,
with the consent of all the Lenders, other periods), (ii) in the case of a
Eurocurrency Rate Bid Advance comprising part of the same Borrowing, 1, 2, 3 or
6 months, (iii) in the case of a Eurocurrency Rate Advance comprising part of
the same Borrowing and denominated in an Alternative Currency, 1, 2, 3 or 6
months (or, with the consent of all the Lenders, other periods) and (iv) as to
any Absolute Rate Bid Advance, a period of not less than 14 days and not more
than 180 days as selected by the Borrower in the applicable Competitive Bid
Request; provided, however, that:
(a) Interest Periods commencing on the same date for Committed
Advances comprising part of the same Borrowing shall be of the same
duration;
(b) the duration of any Interest Period for any Advance shall
end on or prior to the Final Maturity Date;
(c) the first day of an Interest Period for any Eurocurrency
Rate Advance shall be either the last day of any then current Interest
Period for such Eurocurrency Rate Advance, or, if there shall be no then
current Interest Period for such Advance, any Business Day; and
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, in the case of any Interest Period for a Eurocurrency Rate
Advance,
- 19 -
that if such extension would cause the last day of such Interest Period
to occur in the next following month, the last day of such Interest
Period shall occur on the next preceding Business Day.
"INTEREST TYPE" means, (a) with respect to any Committed Advance, a
Base Rate Advance or a Eurocurrency Rate Advance and (b) with respect to any Bid
Advance, an Absolute Rate Bid Advance or a Eurocurrency Rate Bid Advance.
"INVESTMENT" means, when used in connection with any Person, any
investment by that Person, whether by means of purchase or other acquisition of
capital stock or other securities of any other Person or by means of loan,
advance, capital contribution, or other debt or equity participation or interest
in any other Person, including any partnership or joint venture interest in any
other Person. The amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the market
value or book value of such Investment.
"INVITATION FOR COMPETITIVE BIDS" means a solicitation for Competitive
Bids, substantially in the form of Exhibit K.
"ISSUE" means, with respect to any Letter of Credit, either to issue,
or to extend the expiry of, or to renew, or to increase the amount of, such
Letter of Credit or, with respect to any letter of credit issued under the
Existing Credit Agreement, to continue such letter of credit as a Letter of
Credit under this Agreement, and the term "ISSUED" or "ISSUANCE" shall have
corresponding meanings.
"ISSUING LENDER" means, with respect to any Letter of Credit, Bank of
America or such other Lender reasonably acceptable to the Agent as may from time
to time be designated by the Borrower.
"LENDERS" means the Lenders listed on the signature pages hereof and
each Eligible Assignee that becomes a party hereto pursuant to Section 11.08.
"LETTER OF CREDIT" means, collectively, the Commercial Letters of
Credit and the Standby Letters of Credit and the letters of credit issued under
the Existing Credit Agreement which are outstanding on the Closing Date.
"LETTER OF CREDIT LIABILITY" means, as of any date of determination,
all then existing liabilities of the Borrower to the Issuing Lender under this
Agreement in respect of the Letters of Credit Issued for the account of the
Borrower, whether such
- 20 -
liability is contingent or fixed, and shall, in each case, consist of the sum
of (i) the aggregate maximum amount then available to be drawn under such
Letters of Credit (the determination of such maximum amount to assume
compliance with all conditions for drawing) and (ii) the aggregate amount
which has then been paid by, and not been reimbursed to, the Issuing Lender
under such Letters of Credit, after giving effect to all reimbursements on
such date.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of
Consolidated Funded Indebtedness to Consolidated EBITDA for the four Fiscal
Quarters ending on that date.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge of any
kind, sale or discount of accounts receivables, whether voluntarily incurred or
arising by operation of law or otherwise, affecting any property, including any
agreement to grant any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature of a security interest, and/or the
filing of or agreement to give any financing statement (other than a
precautionary financing statement with respect to a lease that is not in the
nature of a security interest) under the Uniform Commercial Code or comparable
law of any jurisdiction with respect to any property.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Swing Line Documents, the Letters of Credit, any Election to Participate, any
Notice of Borrowing, any Request for Letter of Credit, any Request for Extension
and any other agreements of any type or nature heretofore or hereafter executed
and delivered by any Loan Party or any of its Affiliates in favor of the Lenders
in any way relating to or in furtherance of this Agreement in each case either
as originally executed or as the same may from time to time be supplemented,
modified, amended, restated or extended.
"LOAN PARTY" means any of the Subsidiary Borrowers, the Guarantors and
the Borrower.
"MAJORITY LENDERS" means Lenders at any time holding at least 51% of
the then aggregate unpaid principal amount of the Committed Advances owing to
the Lenders, or, if no such principal amount is at such time outstanding,
Lenders having at least 51% of the Total Commitment.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the
- 21 -
validity or enforceability of any Loan Document, (b) is or could reasonably
be expected to be material and adverse to the condition (financial or
otherwise), business operations or prospects of Borrower and its
Subsidiaries, taken as a whole, (c) materially impairs or could reasonably be
expected to materially impair the ability of Borrower and its Subsidiaries,
taken as a whole, to perform the Obligations or (d) materially impairs or
could reasonably be expected to materially impair the ability of the Lenders
to enforce their legal remedies pursuant to the Loan Documents.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE FINANCING" means mortgage financing for a minimum term of 10
years with a minimum average life of 7 years, PROVIDED that such mortgage
financing is non-recourse and is in an initial principal amount equal to not
less than 60% of the appraised value of the property to be financed.
"MULTIEMPLOYER PLAN" means any employee benefit plan of a type
described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that contains a
covenant binding on Borrower or any of its Subsidiaries that prohibits Liens on
any of its or their property.
"NOTES" means the Committed Advance Notes and the Bid Advance Notes.
"NOTICE OF BORROWING" means a written notice, substantially in the
form of Exhibit E hereto, delivered in accordance with, and within the period
specified in, Section 2.02(a) hereof, wherein the Borrower or a Subsidiary
Borrower requests a Committed Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a written notice,
substantially in the form of Exhibit F hereto, delivered in accordance with, and
within the period specified in, Section 2.06(a) hereof, wherein the Borrower or
a Subsidiary Borrower elects to Convert Committed Advances and/or elects an
Interest Period and Interest Type for such Converted Committed Advances or
outstanding Committed Advances.
"OBLIGATIONS" means all present and future obligations of every kind
or nature of any Loan Party at any time and from time to time owed to the Agent,
the Lenders or the Issuing Lender or any one or more of them under any one or
more of the Loan Documents, whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or noncontingent,
- 22 -
including obligations of performance as well as obligations of payment, and
including, to the extent permitted by applicable Debtor Relief Laws, interest
that accrues after the commencement of any proceeding under any Debtor Relief
Law by or against any Loan Party or any Affiliate of any Loan Party.
"OFFICER'S CERTIFICATE" means, when used with reference to any Person,
a certificate signed by a Senior Officer of such Person.
"OUTSTANDING ADVANCES" means, as of any date of determination, the
aggregate principal amount of Advances outstanding on such date.
"OUTSTANDING LETTER OF CREDIT LIABILITY" means, as of any date of
determination, the aggregate amount of Letter of Credit Liability outstanding on
such date, as reduced to the extent that such Letter of Credit Liability has
been cash collateralized pursuant to the terms hereof.
"OVERNIGHT RATE" means, for any day, the rate of interest per annum at
which overnight deposits in the Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by Bank of America's principal office in London to major
banks in the London or other applicable offshore interbank market.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto established under ERISA.
"PENSION PLAN" or "PLAN" means any employee benefit or other plan that
is subject to Title IV of ERISA and which is maintained for employees of
Borrower or any of its ERISA Affiliates.
"PERMITTED ACCOUNTS RECEIVABLE FINANCING" means a sale or discount of
accounts receivable owned by SunMed Finance Inc. having a book value not
exceeding $20,000,000 in the aggregate at any time (net of collections by the
purchaser thereof); PROVIDED, HOWEVER, that in connection with any such
financing arrangement (a) there is no recourse to any seller of such accounts
receivable or any other Affiliate of the Borrower on account of the
creditworthiness of the obligor on such accounts receivable; and (b) no negative
pledge or Lien is created on any accounts receivables not actually sold or
discounted.
"PERMITTED ACQUISITIONS" means Acquisitions of the stock or assets of
a Person engaged in business of the same general type as that of the Borrower
and its Subsidiaries (a)
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which do not violate Section 7.04 and (b) with respect to which no Default or
Event of Default exists before and after giving effect thereto.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction or maintenance of
real property, or Liens incident to construction or maintenance of real
property now or hereafter filed of record for which adequate reserves have
been set aside and which are being contested in good faith by appropriate
proceedings and have not proceeded to judgment, provided that, by reason of
nonpayment of the obligations secured by such Liens, no such real property
is subject to a material risk of loss or forfeiture prior to judgment;
(b) Liens for taxes and assessments on real property which are
not yet past due, or Liens for taxes and assessments on real property for
which adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by such
Liens, no such real property is subject to a material risk of loss or
forfeiture prior to judgment;
(c) minor defects and irregularities in title to any real
property which in the aggregate do not materially impair the fair market
value or use of the real property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements for
the purpose of pipelines, conduits, cables, wire communication lines, power
lines and substations, streets, trails, walkways, drainage, irrigation,
water, and sewerage purposes, dikes, canals, ditches, the removal of oil,
gas, coal, or other minerals, and other like purposes affecting real
property which in the aggregate do not materially burden or impair the fair
market value or use of such real property for the purposes for which it is
or may reasonably be expected to be held;
(e) rights reserved to or vested in any Governmental Agency by
law to control or regulate, or obligations or duties under law to any
Governmental Agency with respect to, the use of any real property;
(f) rights reserved to or vested in any Governmental Agency by
law to control or regulate, or
- 24 -
obligations or duties under law to any Governmental Agency with respect
to, any right, power, franchise, grant, license, or permit;
(g) present or future zoning Laws or other laws restricting the
occupancy, use, or enjoyment of real property;
(h) non-consensual Liens imposed by law, including carrier's,
mechanics, landlord's, warehouseman's or other similar Liens, other than
those described in clauses (a) or (b) above, arising in the ordinary course
of business with respect to obligations which are not delinquent or are
being contested in good faith by appropriate proceedings, provided that, if
delinquent, adequate reserves have been set aside with respect thereto and,
by reason of nonpayment, no property is subject to a material risk of loss
or forfeiture prior to judgment;
(i) Liens consisting of pledges or deposits made in connection
with obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(j) Liens consisting of security interests, pledges or deposits
of property to secure performance in connection with operating leases made
in the ordinary course of business to which the Borrower or any of its
Subsidiaries is a party as lessee, provided the aggregate value of all such
pledges and deposits in connection with any such lease does not at any time
exceed 10% of the annual fixed rentals payable under such lease;
(k) Liens consisting of deposits of property to secure statutory
obligations of Borrower or a Subsidiary of Borrower in the ordinary course
of its business, including any liens created in connection with any letter
of credit;
(l) Liens consisting of deposits of property to secure (or in
lieu of) surety, appeal or customs bonds in proceedings to which Borrower
or a Subsidiary of Borrower is a party in the ordinary course of its
business in an aggregate amount not to exceed $3,000,000 at any time
outstanding and provided the value of the assets subject to such Lien does
not exceed 100% of the face amount of the bond so secured; and
(m) Liens created by or resulting from any litigation or legal
proceeding involving Borrower or a Subsidiary of Borrower in the ordinary
course of its
- 25 -
business which is currently being contested in good faith by appropriate
proceedings, provided that adequate reserves have been set aside with
respect thereto and such Liens are discharged or stayed within 30 days of
creation (or such longer period as may be permitted by law or otherwise
binding on a judgment creditor before execution on a judgment is allowed)
and no material property is subject to a material risk of loss or forfeiture
prior to judgment.
"PERSON" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock company,
trust, estate, unincorporated organization, business association, tribe, firm,
joint venture, Governmental Agency, or otherwise.
"PROJECTIONS" means the financial projections prepared on behalf of
Borrower and its Subsidiaries and heretofore furnished to the Lenders.
"PRO RATA SHARE" means, with respect to each Lender, the percentage
set forth opposite the name of that Lender on Schedule 1.01(b), as such
percentage may be adjusted from time to time pursuant to an assignment under
Section 2.13(c) or Section 11.08.
"REGISTER" has the meaning provided for such term in Section 11.08(e).
"REGULATION G" means Regulation G, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation in
substance substituted therefor.
"REGULATION U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation in
substance substituted therefor.
"REPORTABLE EVENT" means any reportable event as defined in
Section 4043(b) of ERISA with respect to which the PBGC has not waived the
30-day reporting requirement.
"REQUEST FOR EXTENSION" means a request for an extension of the Final
Maturity Date substantially in the form of Exhibit H, signed by a Senior Officer
of the Borrower, and properly completed to provide all information required to
be included therein.
"REQUEST FOR LETTER OF CREDIT" means a request for a Letter of Credit
in the customary form of letters of credit application and reimbursement
agreement used by the Issuing Lender, signed by a Senior Officer of the Borrower
and properly
- 26 -
completed to provide all information required to be included therein; provided
that such application and reimbursement agreement shall be deemed to
incorporate by reference each representation of the Borrower set forth in a
Notice of Borrowing.
"REQUIREMENT OF LAW" means, as to any Person, (a) the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, (b) any law applicable to such Person and (c) any
judgment, award, decree, writ or determination of a Governmental Agency,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"RESTRICTED COMMITMENT AMOUNT" means (x) so long as the Dollar
equivalent of the aggregate then outstanding Eurocurrency Rate Committed
Advances denominated in Alternative Currencies is less than $75,000,000, zero,
and (y) so long as such Dollar equivalent equals or exceeds $75,000,000, an
amount equal to $5,000,000 plus the amount, if any, by which the Dollar
equivalent of the aggregate then outstanding Eurocurrency Rate Committed
Advances denominated in Alternative Currencies minus the amount of any deposits
established or maintained with the Agent as cash collateral for such Advances
exceeds the Alternative Currency Sublimit. The Restricted Commitment Amount
shall be calculated as of the last Business Day of each week in accordance with
Section 1.05.
"RESTRICTED JUNIOR PAYMENT" means, as to any Person, (i) any dividend
or other distribution, direct or indirect, on account of any shares of any class
of stock or other ownership interest of any Loan Party now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock or other ownership interest of any Loan Party
now or hereafter outstanding, (iii) any prepayment of principal of, premium, if
any, or redemption, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Subordinated Debt (other than prepayments in
respect of any Seller Note that is Subordinated Debt), other than refinancings
thereof on substantially similar terms, and (iv) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of any Loan Party now or hereafter
outstanding.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
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"SEC" means the Securities and Exchange Commission and any successor
commission.
"SELLER NOTE" means a promissory note or other obligation to pay money
(other than payments under customary indemnities) given by the Borrower or any
Subsidiary of the Borrower in connection with an Acquisition, together with all
security agreements, guaranties, pledge agreements or other forms of collateral
or credit support given by any Person in connection therewith.
"SENIOR OFFICER" means the president, the chief executive officer, the
chief financial officer, vice president, general counsel, treasurer and
controller, in each case whatever the title nomenclature may be, of the Person
designated.
"SHAREHOLDERS' EQUITY" means, as of any date of determination,
shareholders' equity as of that date determined in accordance with Generally
Accepted Accounting Principles; provided that there shall be excluded from
Shareholders' Equity any amount attributable to capital stock that is, directly
or indirectly, required by its terms to be redeemed or repurchased by the issuer
thereof at a specified date or upon the occurrence of specified events or at the
election of the holder thereof, if and to the extent that such date is, or such
events or election could occur, prior to the Final Maturity Date.
"STANDBY LETTER OF CREDIT" means a standby letter of credit in the
customary form used by the Issuing Lender, issued by the Issuing Lender pursuant
to Section 3.01, either as originally issued or as the same from time to time
may be supplemented, modified, amended, renewed or extended.
"SUBORDINATED DEBT" means Indebtedness of a Loan Party which is
subordinated in right of payment to the payment of the Obligations hereunder on
terms and conditions substantially similar to those set forth in Exhibit M.
"SUBSIDIARY" means, as of any date of determination and with respect
to any Person, any corporation, partnership or joint venture, whether now
existing or hereafter organized or acquired: (a) in the case of a corporation
or the foreign equivalent organization thereof, of which a majority of the
securities having ordinary voting power for the election of directors or other
governing body (other than securities having such power only by reason of the
happening of a contingency) are at the time beneficially owned, directly or
indirectly, by such Person and/or one or more Subsidiaries of such Person, or
(b) in the case of a partnership or joint venture, of which such Person or a
Subsidiary of such Person is a general partner or joint venturer
- 28 -
or of which a majority of the partnership or other ownership interests are at
the time beneficially owned, directly or indirectly by such Person and/or one
or more of its Subsidiaries.
"SUBSIDIARY BORROWER" means any Foreign Subsidiary in which the
Borrower, directly or indirectly, has at least an 80% ownership interest and
which is identified on Schedule 1.01(c) or which shall have delivered to the
Agent and the Lenders an Election to Participate, duly executed by such
Subsidiary and the Borrower, and in respect of which the conditions set forth in
Section 4.03 have been satisfied.
"SUBSIDIARY BORROWER SUBLIMIT" means, for each Subsidiary which
becomes a Subsidiary Borrower hereunder, the amount specified as such Subsidiary
Borrower's Sublimit on Schedule 1.01(c).
"SUNRISE" means Sunrise Medical, Inc., a Delaware corporation.
"SWAP AGREEMENT" means one or more written agreements between a Loan
Party and one or more financial institutions providing for "swap," "collar" or
other interest rate protection with respect to any Indebtedness.
"SWING LINE" means the revolving line of credit established by the
Swing Line Lender in favor of Borrower pursuant to Section 2.09.
"SWING LINE ADVANCES" means advances made by the Swing Line Lender to
Borrower pursuant to Section 2.09.
"SWING LINE LENDER" means Bank of America.
"SWING LINE DOCUMENTS" means any promissory note and any other
documents executed by Borrower as requested by the Swing Line Lender from time
to time in favor of the Swing Line Lender in connection with the Swing Line.
"SWING LINE OUTSTANDINGS" means, as of any date of determination, the
aggregate principal Indebtedness of Borrower on all Swing Line Advances then
outstanding.
"TERMINATION EVENT" means (a) a Reportable Event, (b) the withdrawal
of any Loan Party or any of its ERISA Affiliates from a Pension Plan during any
plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, if such withdrawal results in liability pursuant to
Section 4063 of the Code, (c) the filing of a notice of intent to terminate a
Pension Plan or the treatment of an amendment to a Pension Plan
- 29 -
as a termination thereof pursuant to Section 4041 of ERISA, (d) the institution
of proceedings to terminate a Pension Plan by the PBGC or (e) any other event
or condition which might reasonably be expected to constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan.
"TOTAL COMMITMENT" means, as of the date of determination thereof, the
aggregate Commitments of all the Lenders.
"TOTAL LIABILITIES" means, as of any date of determination, all
liabilities that should be reflected as a liability on a consolidated balance
sheet of Borrower and its Subsidiaries on such date prepared in accordance with
Generally Accepted Accounting Principles.
"TO THE BEST KNOWLEDGE OF" means, when modifying a representation,
warranty or other statement of any Person, that such representation, warranty or
statement is a representation, warranty or statement that the Person making it
has no actual knowledge, after performing reasonable due diligence under the
circumstances, of the inaccuracy of the matters therein stated. Where the
Person making the representation, warranty or statement is not a natural Person,
the aforesaid actual or constructive knowledge shall be that of any Senior
Officer of that Person.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of Borrower, whether
now existing or hereafter acquired, with respect to which Borrower owns,
directly or indirectly, and controls the power to vote, 100% of the capital
shares, partnership or other ownership interests in such Subsidiary other than
capital shares or partnership or other ownership interests which are held by
certain individuals as director's qualifying shares or are otherwise held by
directors of a Subsidiary in nominal amounts necessary to comply with applicable
local laws.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
1.02 USE OF DEFINED TERMS. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.03 ACCOUNTING TERMS. All accounting terms not specifically defined
in this Agreement shall be construed in conformity with, and all financial data
required to be submitted
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by this Agreement shall be prepared in conformity with, Generally Accepted
Accounting Principles consistently applied, except as otherwise specifically
prescribed herein. In the event that Generally Accepted Accounting Principles
change during the term of this Agreement such that the financial covenants
contained in Sections 7.09 through 7.11 would then be calculated in a different
manner or with different components or would render the same not meaningful
criteria for evaluating Borrower's financial condition, (a) Borrower and the
Lenders agree to amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating Borrower's financial
condition to substantially the same criteria as were effective prior to such
change in Generally Accepted Accounting Principles and (b) during the period
pending agreement on such amendments (which may not exceed 60 days absent the
mutual agreement of the Borrower and the Lenders), Borrower shall be deemed to
be in compliance with the financial covenants contained in such Sections
following any such change in Generally Accepted Accounting Principles if and to
the extent that Borrower would have been in compliance therewith under
Generally Accepted Accounting Principles as in effect immediately prior to such
change.
1.04 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified, or amended, are incorporated herein by reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.05 CURRENCY EQUIVALENTS GENERALLY. (a) For all purposes of this
Agreement other than Article II (but not for purposes of the preparation of any
financial statements delivered pursuant to this Agreement or any calculation to
be made on the basis of any such financial statements), the equivalent in any
Alternative Currency of an amount in Dollars, and the equivalent in Dollars of
an amount in any Alternative Currency, shall be determined at the rate of
exchange quoted by the Agent in London, England, at 11:00 A.M. (London time) on
the date of determination, to prime banks in London, England for the spot
purchase in the London, England foreign exchange market of such amount of
Dollars with such Alternative Currency, or such amount of such Alternative
Currency with such Dollars, as the case may be.
(b) For purposes of determining compliance with covenants in Article
VII (other than Sections 7.09, 7.10 and 7.11), Dollar equivalents of Alternative
Currency amounts incurred or outstanding shall be deemed to be the Dollar
- 31 -
equivalent thereof at the time such Alternative Currency amount was incurred or
became outstanding.
1.06 REFERENCES TO LAST DAY OF FISCAL PERIOD. If the last day of any
Fiscal Year or Fiscal Quarter of the Borrower is misstated in any Loan
Document, such date shall be deemed to refer to the last day of the Fiscal Year
or Fiscal Quarter ending nearest to the day actually set forth.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01 THE ADVANCES. (a) COMMITTED ADVANCES. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Committed
Advances to the Borrower and the Subsidiary Borrowers, from time to time on any
Business Day from the date hereof to the Final Maturity Date, in an aggregate
amount (determined in Dollars) not to exceed at any time outstanding the Dollar
amount of such Lender's Commitment; PROVIDED, HOWEVER, that such Lender shall
not be obligated to make any Committed Advance if, after giving effect to such
Committed Advance and the other Committed Advances to be made by the other
Lenders as part of the same Committed Borrowing, (x) the Facility Usage shall
exceed the Total Commitment or (y) in the event such Borrowing is being made by
a Subsidiary Borrower, the aggregate amount of outstanding Advances to such
Subsidiary Borrower shall exceed such Subsidiary Borrower's Subsidiary Borrower
Sublimit; PROVIDED, FURTHER, that such Lender shall not be obligated to make any
Committed Advance in an Alternative Currency if, after giving effect to such
Committed Advance and the other Committed Advances to be made by the other
Lenders as part of the same Committed Borrowing, the then outstanding aggregate
principal amount (determined in Dollars) of all Committed Advances denominated
in Alternative Currencies shall exceed the Alternative Currency Sublimit. Each
Committed Borrowing under this Section 2.01(a) shall (i) be in an aggregate
amount not less than $1,000,000 in the case of Base Rate Advances, $1,000,000 in
the case of Eurocurrency Rate Committed Advances denominated in Dollars and
$1,500,000 in the case of Eurocurrency Rate Committed Advances denominated in an
Alternative Currency, (ii) be in an integral multiple of $100,000 in the case of
Base Rate Advances and $500,000 in the case of each other type of Advance, and
(iii) consist of Committed Advances of the same Interest Type made in the same
currency on the same Business Day by the Lenders ratably according to their
respective Commitments, SUBJECT, HOWEVER, to the provisions of Section 2.02(c).
Within the limits of each Lender's Commitment and subject to the terms and
provisions hereof, the Borrowers may
- 32 -
from time to time borrow under this Section 2.01(a), prepay pursuant to Section
2.12, and reborrow under this Section 2.01(a).
(b) CURRENCY EQUIVALENTS. For purposes of this Section 2.01 and all
other provisions of this Article II, the equivalent in Dollars of any
Alternative Currency or the equivalent in any Alternative Currency of Dollars or
of any other Alternative Currency shall be determined in accordance with
Section 2.19.
2.02 MAKING THE COMMITTED ADVANCES.
(a) COMMITTED ADVANCES. Each Committed Borrowing shall be of the
same Interest Type and denominated in the same currency, and shall be made by a
Notice of Borrowing received by the Agent:
(x) not later than 9:30 A.M. (San Francisco time) on the date of such
Committed Borrowing if such Committed Borrowing consists of Base Rate
Advances;
(y) not later than 10:00 A.M. (San Francisco time) on the third
Business Day prior to the date of such Committed Borrowing if such
Committed Borrowing consists of Eurocurrency Rate Committed Advances
denominated in Dollars; and
(z) not later than 10:00 A.M. (San Francisco time) on the fifth
Business Day prior to the date of such Committed Borrowing if such
Committed Borrowing consists of Eurocurrency Rate Committed Advances
denominated in an Alternative Currency.
More than one Committed Borrowing may be made on any Business Day; provided no
more than one Committed Borrowing (which excludes Conversions and Continuations)
may be made in any single Currency on the same Business Day. Each such Notice
of Borrowing shall specify therein the (i) date of such Committed Borrowing,
(ii) Interest Type of Committed Advances comprising such Committed Borrowing,
(iii) in the case of a proposed Committed Borrowing comprised of Eurocurrency
Rate Committed Advances, currency of such Committed Borrowing and the Dollar
equivalent of Eurocurrency Rate Committed Advances denominated in Alternative
Currencies as of the date of such Notice, (iv) aggregate amount and Borrower of
such Committed Borrowing, (v) in the case of a proposed Committed Borrowing
comprised of Eurocurrency Rate Committed Advances, initial Interest Period for
each such Committed Advance and (vi) the Applicable Margin, if any, for the
Advances comprising such Committed Borrowing, and shall be given
- 33 -
in writing or by telecopier or telephone (and if by telephone, confirmed
promptly by telecopier).
In the case of a proposed Committed Borrowing comprised of
Eurocurrency Rate Committed Advances in an Alternative Currency, the Agent
shall, at the request of the relevant Borrower, use its best efforts to
notify such Borrower as to an indicative interest rate with respect to such
proposed Committed Borrowing by 9:00 A.M. (San Francisco time) the fourth
Business Day prior to the date of such Committed Borrowing, and such Borrower
may, by notice to the Agent not later than 10:00 A.M. (San Francisco time) on
the fourth Business Day preceding the date of such proposed Committed
Borrowing, withdraw the Notice of Borrowing relating to such requested
Committed Borrowing and if so withdrawn prior to such time, Borrower shall
not be obligated to pay any costs which might otherwise be payable pursuant
to Section 2.02(b) in connection with the Borrower's failure to incur such
Advance; provided, however, the failure of the Agent to so notify the
Borrower shall not relieve such Borrower of any of its obligations hereunder,
including its obligation to borrow such Eurocurrency Rate Committed Advances
on the date of Borrowing specified in such Notice of Borrowing; and provided
further, notwithstanding anything to the contrary, in no event shall the
Agent have any liability to any Borrower for failing to notify a Borrower of
the interest rate on or prior to 9:00 A.M. (San Francisco time) such fourth
Business Day preceding such date of Borrowing.
If a Lender is unable to fund an Advance requested in an Alternative
Currency (whether due to changes in the interbank market or changes in funding
capabilities of such Lender, including, without limitation, changes due to such
Lender's decision to close a funding office or not to book loans in such
Alternative Currency), such Lender shall notify the Agent of such fact no later
than the later of (i) 10:00 A.M. (San Francisco time) on the fourth Business Day
preceding the applicable date of such Committed Borrowing and (ii) one hour
after being notified by the Agent of the relevant Notice of Borrowing. The
Agent shall promptly notify each other Lender and the Borrower of the Agent's
receipt of any such Notice that a Lender is not going to fund a Committed
Borrowing requested in an Alternative Currency and the Notice of Borrowing shall
be deemed to be withdrawn. In such event, no Lender shall have any obligation
to fund the Advances requested in such Notice of Borrowing and the Borrower
shall not be obligated to pay any costs which might otherwise be payable
pursuant to Section 2.02(b) with respect to any requested Eurocurrency Rate
Committed Advances which are not funded by the Lenders under such withdrawn
Notice of Borrowing.
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Each Lender shall promptly notify the Agent and the Borrower if any
Alternative Currency in which the Borrower has previously received
Eurocurrency Rate Committed Advances is no longer available to such Lender.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may, upon receipt of such a notice, request that
such Lender be replaced with another commercial bank or other financial
institution which has such Alternative Currency available to it selected by
the Borrower and approved in writing by the Agent (which approval shall not
be unreasonably withheld or delayed). Upon any such request by the Borrower,
if the Agent shall have approved the commercial bank or other financial
institution selected by the Borrower, the Lender that is not able to fund in
such Alternative Currency shall execute and deliver a Commitment Assignment
and Acceptance to the Agent pursuant to which such Lender shall assign all of
its Commitment to the commercial bank or other financial institution selected
by the Borrower. If any Lender which has notified the Agent and the Borrower
in accordance with this Section 2.02(a) that an Alternative Currency is no
longer available to it, is not so replaced, such Lender shall promptly notify
the Agent and the Borrower if such Alternative Currency subsequently becomes
available to it.
(b) NOTICES IRREVOCABLE, ETC. Except as otherwise provided in
Section 2.02(a), each Notice of Borrowing shall be irrevocable and binding on
the Borrower delivering any such notice. In the case of any Committed
Borrowing which the related Notice of Borrowing specified is to be comprised
of Eurocurrency Rate Committed Advances, unless such notice is withdrawn or
deemed withdrawn pursuant to Section 2.02(a), such Borrower shall indemnify
each Lender against any reasonable direct out-of-pocket loss, cost or expense
incurred by such Lender as a result of any failure by the Borrowers to
fulfill on or before the date specified in such Notice of Borrowing the
applicable conditions set forth in Article IV hereof, including, without
limitation, any loss or reasonable direct out-of-pocket cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund the Advance to be made by such Lender as
part of such Committed Borrowing when such Committed Borrowing, as a result
of such failure, is not made on such date.
(c) ADVANCES BY LENDERS. The Agent shall promptly (and in any event
within one Business Day) give each Lender notice of each Notice of Borrowing
received by it. Each Lender shall, before (i) 12:00 Noon (San Francisco time)
with respect to Borrowings in U.S. Dollars, and (ii) 9:00 a.m. (local time at
the Agent's Applicable Lending Office) with respect to Borrowings in Alternative
Currencies, on the date of the Committed Borrowing covered by each such Notice
of Borrowing, make available for the
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account of its Applicable Lending Office to the Agent such Lender's ratable
portion of such Committed Borrowing by depositing the amount of such portion
in the applicable currency and in same day funds in the Agent's Account.
Unless the Agent shall have received written notice from a Lender prior to
the date of any such Committed Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Committed
Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Committed Borrowing in accordance
with this Section 2.02(c) and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount pursuant to Section 2.02(d). If and to the extent any Lender shall
not have made available to the Agent on the date of the Committed Borrowing
such Lender's ratable portion of such Committed Borrowing, such Lender and
the applicable Borrower agrees to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date such amount
is made available to the applicable Borrower until the date such amount is
repaid to the Agent, at an interest rate equal to, in the case of a Borrower,
the interest rate (plus the Applicable Margin, if any) stated in the Notice
of Borrowing applicable thereto, or, in the case of a Lender, the Federal
Funds Rate or, in the case of a payment in an Alternative Currency, the
Overnight Rate. If such Lender shall pay to the Agent such amount, such
amount so paid shall constitute such Lender's Advance as part of such
Committed Borrowing for purposes of this Agreement and to such extent the
Borrower shall have no further obligation under this Section 2.02(c) to repay
such amount.
(d) DISBURSEMENT OF ADVANCES. Upon fulfillment of the applicable
conditions set forth in Article IV hereof, the Agent will make funds for any
Committed Borrowing available to the applicable Borrower, to the extent of
Agent's receipt of such funds from the Lenders. The funds so made available
to the applicable Borrower, subject to the preceding sentence, will be
same-day funds to the extent funds are received by the Agent prior to the
close of business on the day received. Upon request of the applicable
Borrower, the Agent will disburse such funds to such accounts as are
designated by such Borrower, subject to the payment of customary wire
transfer costs.
(e) NATURE OF LENDER'S OBLIGATIONS. The failure of any Lender to
make any Committed Advance to be made by it as part of any Committed
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Committed Advance on the date of such Committed
Borrowing. In no event shall any Lender be responsible for the failure of
any other Lender to make the Committed Advance to be made by such other
Lender on the date of any Committed Borrowing.
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2.03 FEES.
(a) AGENT'S AND ARRANGER'S FEES. The Borrower agrees to pay to the
Agent and the Arranger, for their own accounts, the fees referred to in the
letter agreement dated August 8, 1997 between the Borrower, Bank of America
and the Arranger.
(b) APPROVAL FEE. The Borrower agrees to pay to the Agent, for the
account of each Lender approving this Agreement by August 26, 1997, (i) on
the Closing Date, a fee equal to 0.075% of such Lender's Commitment and (ii)
on December 31, 1997, a fee equal to 0.125% of such Lender's Pro Rata Share
of any portion of the Total Commitment which is in excess of $150,000,000 on
December 31, 1997.
(c) COMMITMENT FEE. The Borrower agrees to pay to the Agent, for
the account of each Lender, a commitment fee on the average daily unused
portion of such Lender's Commitment (as calculated in accordance with Section
2.03(c)) at a rate per annum equal to the Applicable Margin as in effect from
time to time for all periods on and after the Closing Date, payable quarterly
on the last Business Day of each March, June, September and December in each
year and on the Final Maturity Date.
(d) COMMITMENT FEE CALCULATIONS. For purposes of calculating each
Lender's commitment fee pursuant to Section 2.03(c), outstanding Letters of
Credit shall be considered a ratable usage of such Lender's Commitment based
on the Letter of Credit Liability attributable from time to time to such
Letters of Credit; Swing Line Advances and Bid Advances shall not be
considered usage. For purposes of determining the unused portion of each
Lender's Commitment solely in order to calculate the commitment fee under
Section 2.03(c), the equivalent in Dollars of each Eurocurrency Rate
Committed Advance made by such Lender in an Alternative Currency as
determined on the date of the making of such Advance (in accordance with the
provisions of Section 2.19) shall be the amount of such Lender's Commitment
used in connection with such Advance, and no further adjustments shall be
made with respect to the unused portion of such Lender's Commitment based
upon fluctuations thereafter in the value of the Alternative Currency of such
Advance. Any change in the commitment fee because of a change in the
Leverage Ratio shall be effective upon receipt by the Agent from a Senior
Officer of the Borrower of a Compliance Certificate demonstrating such fact.
(e) NATURE OF OBLIGATION. The Borrower's obligation hereunder to
pay the fees referred to in this Section 2.03 shall be absolute and
unconditional and shall survive the making and repaying of Advances and the
termination of this Agreement.
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2.04 REPAYMENT OF ADVANCES.
(a) The Borrower agrees to repay on the Final Maturity Date the
outstanding principal amount of all Committed Advances made to the Borrower.
Notwithstanding any other provision of this Agreement, if a Subsidiary
Borrower shall be a party to this Agreement, the Obligations of each
Borrower, in its capacity as a Borrower, shall be several and not joint and
several. Except as provided in Section 2.06 (c) and (d), each Eurocurrency
Rate Committed Advance denominated in an Alternative Currency, together with
interest thereon as provided herein, shall be repaid in such Alternative
Currency.
(b) Sunrise shall repay each Bid Advance on the last day of the
relevant Interest Period.
2.05 INTEREST RATE PROVISIONS, ETC.
(a) BASE RATE ADVANCES. Except to the extent that the applicable
Borrower shall have elected in the applicable Notice of Borrowing or Notice
of Conversion/Continuation to pay interest on any Committed Advances
denominated in Dollars and comprising part of the same Committed Borrowing
for an Interest Period pursuant to subsection (d) of this Section 2.05, the
Borrowers shall pay interest on the unpaid principal amount of each Committed
Advance denominated in Dollars made to the Borrowers, from the date of such
Advance until such principal amount is paid in full, payable quarterly on the
last Business Day of each March, June, September and December in each year
and on the Final Maturity Date, at a fluctuating interest rate per annum
equal to the Base Rate in effect from time to time; PROVIDED, HOWEVER, that
during any period in which an Event of Default has occurred and is continuing
(but only so long as such Event of Default is continuing), the Borrower shall
pay interest on the unpaid principal amount of each Base Rate Advance made to
it, payable from the date such Event of Default occurs and upon written
demand by the Agent on behalf of the Lenders to the Borrowers, at the Default
Rate.
(b) INTEREST PERIODS. Any Borrower may, pursuant to subsection (d)
below, elect to have the interest on the principal amount of any Committed
Advances made to it denominated in Dollars and comprised or comprising part
of the same Committed Borrowing to be made to the Borrower pursuant to
Section 2.02(a), or on all or any portion of the principal amount of any
outstanding Committed Advances of the same Interest Type, in each case
ratably according to the respective outstanding principal amounts of
Committed Advances of such Interest Type owing to each Lender, determined and
payable for an Interest Period in accordance with subsection (d) below;
PROVIDED, HOWEVER, that the
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Borrowers may not select any Interest Period that ends after the Final
Maturity Date; and, PROVIDED, FURTHER, that the Borrowers may not, unless the
Majority Lenders shall otherwise agree in writing, have more than an
aggregate of 40 Eurocurrency Rate Committed Advances and Bid Advances from
any Lender outstanding at any one time.
(c) BID ADVANCES. Each Bid Advance shall bear interest on the
outstanding principal amount thereof from the Borrowing date at a rate per
annum equal to the Eurocurrency Rate plus (or minus) the Eurocurrency Rate
Bid Margin, or at the Absolute Rate, as the case may be; PROVIDED, HOWEVER,
that during any period in which an Event of Default has occurred and is
continuing (but only so long as such Event of Default is continuing), the
Borrower shall pay interest on the unpaid principal amount of each such Bid
Advance made to it, payable from the date such Event of Default occurs and
upon written demand by the Lender of such Bid Advance, at the rate of 2% per
annum above the rate otherwise applicable in effect at the time of the
occurrence of such Event of Default, until the last day of the then current
Interest Period for such Advance, and thereafter at the Default Rate in
effect from time to time.
(d) EUROCURRENCY RATE COMMITTED ADVANCES DENOMINATED IN DOLLARS.
Any Borrower may, from time to time and on the condition no Event of Default
or Default has occurred and is continuing and subject to the provisions of
subsections (f)-(k) below, elect to pay interest on each Committed Advance
denominated in Dollars and comprising part of the same Committed Borrowing
made to the Borrower during any Interest Period therefor at a rate per annum
equal to the sum of the Eurocurrency Rate for such Interest Period PLUS the
Applicable Margin, by selecting the same either in the Notice of Borrowing
pursuant to which such Committed Advance was made or in a Notice of
Conversion/Continuation covering such Committed Advance, each of which shall
specify the Eurocurrency Rate Committed Advances and the first day and
duration of such Interest Period, and which shall be delivered to the Agent
as specified in Section 2.02(a), Section 2.06(a) or Section 2.06(b), as
applicable. If a Borrower has made such an election for Eurocurrency Rate
Committed Advances for any Interest Period, such Borrower shall, subject to
subsection (1) hereof, pay interest on the unpaid principal amount of each
such Eurocurrency Rate Committed Advance during such Interest Period (i) in
the case of an Interest Period which is three months or less, on the last day
of such Interest Period and (ii) in the case of an Interest Period which is
longer than three months, on the last day of each three-month period of such
Interest Period and on the last day of such Interest Period, at a rate per
annum equal to the sum of the Eurocurrency Rate for such Interest Period for
such Eurocurrency Rate Committed Advance PLUS
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the Applicable Margin; PROVIDED, HOWEVER, that during any period in which an
Event of Default has occurred and is continuing (but only so long as such
Event of Default is continuing), such Borrower shall pay interest on the
unpaid principal amount of each such Eurocurrency Rate Committed Advance made
to it, payable from the date such Event of Default occurs and upon written
demand by the Agent on behalf of the Lenders, at the rate of 2% per annum
above the Eurocurrency Rate PLUS the Applicable Margin for such Eurocurrency
Rate Committed Advance in effect at the time of the occurrence of such Event
of Default, until the last day of the then current Interest Period for such
Advance, and thereafter at the Default Rate in effect from time to time. On
the last day of each Interest Period for any Eurocurrency Rate Committed
Advance denominated in Dollars, the unpaid principal balance thereof shall
automatically become and bear interest as a Base Rate Advance, except to the
extent that the applicable Borrower of such Advance has elected to pay
interest on all or any portion of such amount for a new Interest Period
commencing on such day in accordance with this Section 2.05 and by timely
delivering a Notice of Conversion/Continuation pursuant to Section 2.06(a).
(e) EUROCURRENCY RATE COMMITTED ADVANCES DENOMINATED IN ALTERNATIVE
CURRENCIES. Each Borrower shall pay interest on the unpaid principal amount of
each Committed Advance made to it denominated in an Alternative Currency and
comprising part of the same Committed Borrowing, from the date of such Advance
until such principal amount is paid in full at a rate per annum equal to the sum
of the Eurocurrency Rate, determined with regard to the applicable Alternative
Currency of such Advance and the Interest Period selected by such Borrower
pursuant to Section 2.02(a), 2.06(a) or 2.06(b), for such Interest Period PLUS
the Applicable Margin, payable (i) in the case of an Interest Period which is
one, two or three months, on the last day of such Interest Period and (ii) in
the case of an Interest Period which is six months, on the last day of the third
month of such Interest Period and on the last day of such Interest Period;
PROVIDED, HOWEVER, that during any period in which an Event of Default has
occurred and is continuing (but only so long as such Event of Default is
continuing), each Borrower shall pay interest on the unpaid principal amount of
each Committed Advance made to it denominated in an Alternative Currency,
payable from the date such Event of Default occurs and upon written demand by
the Agent on behalf of the Lenders, at the rate of 2% per annum above the
Eurocurrency Rate plus the Applicable Margin for such Committed Advance in
effect at the time of the occurrence of such Event of Default, until the
principal amount of such Committed Advance is paid in full. On the last day of
each Interest Period for any Committed Advance denominated in an Alternative
Currency, so long as no Event of Default or Default has occurred and is
continuing,
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the unpaid principal balance thereof shall automatically become and bear
interest as a Eurocurrency Rate Committed Advance denominated in the same
Alternative Currency on the basis of a one month Interest Period, except to
the extent that the applicable Borrower has elected to pay interest on all or
any portion of such Advance for a new Interest Period commencing on such day
in accordance with this Section 2.05 and by timely delivering a Notice of
Conversion/Continuation pursuant to Section 2.06(a); PROVIDED, HOWEVER, that
if the Agent shall have notified the Borrower on or prior to 11:00 A.M. (San
Francisco time) on the fourth Business Day preceding the last day of such
Interest Period that any Lender is unable to fund such Alternative Currency
after the expiration of such Interest Period, all Advances denominated in
such Alternative Currency maturing on the last day of such Interest Period
shall, notwithstanding the foregoing, be due and payable on the last day of
such Interest Period.
(f) INTEREST RATE QUOTATIONS. In the event that, prior to the
first day of any Interest Period for any Borrowing, the Agent shall have
determined in good faith (or the Lender of any Eurocurrency Rate Bid Advance
as to which the Borrower has accepted such Lender's Competitive Bid, but as
to which the Borrowing Date has not arrived shall have determined and have
notified the Agent) (which determination shall be conclusive and binding upon
all parties hereto) that (i) Dollar or Alternative Currency deposits of the
relevant amount and for the relevant Interest Period for such Advances are
not available to the Lenders, or (ii) adequate and reasonable means do not
exist for ascertaining the Eurocurrency Rate for any Eurocurrency Rate
Committed Advances denominated in Dollars, or in an Alternative Currency then:
(i) the Agent shall forthwith notify the Borrowers and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Committed Advances denominated in Dollars or in such Alternative
Currency, as the case may be,
(ii) each such Committed Advance denominated in Dollars will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance unless an appropriate notice is
given for another Interest Type which is then available,
(iii) each such Committed Advance denominated in such
Alternative Currency will automatically, on the last day of the then
existing Interest Period therefor, be due and payable, and
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(iv) the obligation of the Lenders to make, or to Convert
Advances into, Eurocurrency Rate Committed Advances, shall be suspended
until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
(g) CHANGE IN CIRCUMSTANCES. If, with respect to any Eurocurrency
Rate Advances, the Majority Lenders notify the Agent (or the Lender of any
Eurocurrency Rate Bid Advance as to which the Borrower has accepted such
Lender's Competitive Bid, but as to which the Borrowing Date has not arrived
notifies the Agent) that the Eurocurrency Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Majority Lenders
of making or maintaining their respective Eurocurrency Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrowers and the
Lenders, whereupon (i) each Eurocurrency Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (ii) the obligation of the Lenders to make, or Convert
Committed Advances into, Eurocurrency Rate Advances shall be suspended until
the Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
(h) FAILURE TO NOTIFY. If any Borrower shall fail to select the
duration of any Interest Period for any Eurocurrency Rate Committed Advances
made to such Borrower in accordance with Section 2.05(d) or Section 2.06(a)
or (b), the Agent will forthwith so notify such Borrower and the Lenders, and
such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances; PROVIDED, HOWEVER,
that if such failure to select an Interest Period relates to any Eurocurrency
Rate Advance denominated in an Alternative Currency, such Advance will
automatically, on the last day of the existing Interest Period for such
Advance, be continued as a Eurocurrency Rate Advance denominated in such
Alternate Currency with an Interest Period of one month.
(i) MINIMUM AMOUNTS. On the date on which the aggregate unpaid
principal amount of Committed Advances comprising any Committed Borrowing
shall be reduced, by payment or prepayment (but not by reason of fluctuations
in foreign currency exchange rates), to less than $1,000,000, such Advances
shall, if they are Advances of an Interest Type other than Base Rate
Advances, automatically Convert into Base Rate Advances, and on and after
such date the right of the Borrower to Convert such Advances into Advances of
an Interest Type other than Base Rate Advances shall terminate.
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(j) ILLEGALITY. Notwithstanding any other provision of this
Agreement, if the enactment or issuance of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any
central bank or other governmental authority shall assert in writing that it
is unlawful, for any Lender or its Eurocurrency Lending Office to fund or
maintain Eurocurrency Rate Advances denominated in Dollars or in any
Alternative Currencies hereunder, then, on notice thereof by such Lender to
the Borrowers through the Agent, (i) the right of the Borrowers to select
such Interest Type for any Advance pursuant to subsection (d) or (e) above
and pursuant to Section 2.06(a) and (b) or to accept a bid from the affected
Lender pursuant to Section 2.08(e), as the case may be, shall thereupon be
suspended until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist (and each Lender shall
promptly notify Borrower if such circumstance no longer exists), (ii) each
such affected Advance denominated in Dollars shall automatically become a
Base Rate Advance and (iii) the Borrowers shall forthwith prepay in full all
such affected Eurocurrency Rate Advances denominated in an Alternative
Currency of all Lenders then outstanding, together with interest accrued
thereon.
(k) QUOTED RATES. The Agent shall give prompt (and in any event
within one Business Day) notice to the Borrowers and the Lenders of the
applicable interest rate determined by the Agent for the purposes of Section
2.05(c), (d) or (e).
(l) SWING LINE ADVANCES. The Borrower shall pay interest on the
unpaid principal amount of each Swing Line Advance from the date of such
Advance until such principal amount is paid in full, payable on such dates,
not more frequently than monthly, as may be specified by the Swing Line
Lender and in any event on the Final Maturity Date, at a fluctuating interest
rate per annum equal to the Base Rate in effect from time to time; PROVIDED,
HOWEVER, that during any period in which an Event of Default has occurred and
is continuing (but only so long as such Event of Default is continuing), such
Borrower shall pay interest on the unpaid principal amount of each Swing Line
Advance made to it, payable from the date such Event of Default occurs and
upon written demand by the Swing Line Lender to such Borrower, at the Default
Rate. The Swing Line Lender shall be responsible for invoicing such Borrower
for such interest. The interest payable on Swing Line Advances is solely for
the account of the Swing Line Lender.
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2.06 VOLUNTARY CONVERSIONS AND CONTINUATIONS OF COMMITTED ADVANCES.
(a) CONVERSION AND CONTINUATION. The Borrower may, from time to
time and on the condition that no Default or Event of Default shall have
occurred and be continuing, on any Business Day, upon delivery of a Notice of
Conversion/Continuation given to the Agent not later than 10:00 A.M. (San
Francisco time) on the third Business Day (or, in the case of Alternative
Currency Advances, the fifth Business Day) prior to the date of the proposed
Conversion or Continuation and subject to the other provisions of Section
2.05 and this Section 2.06, (i) continue Committed Advances of the same
Interest Type and Interest Period and comprising the same Committed Borrowing
as Committed Advances of such Interest Type or (ii) Convert such Committed
Advances, if such Committed Advances are denominated in Dollars, into
Committed Advances of another Interest Type denominated in Dollars; PROVIDED,
HOWEVER, that any Conversion of any Eurocurrency Rate Committed Advances into
Committed Advances of another Interest Type shall be made on, and only on,
the last day of an Interest Period for such Eurocurrency Rate Committed
Advances; and, PROVIDED, FURTHER, that Eurocurrency Rate Committed Advances
denominated in an Alternative Currency may not be converted into another
Alternative Currency and may only be continued as Eurocurrency Rate Committed
Advances denominated in such Alternative Currency. Each such Notice of a
Conversion/Continuation shall be in writing or by telecopier or telephone
(and if by telephone, confirmed immediately by telecopier), and delivered or
given to the Agent within the time period specified above, and shall specify
(i) the date of such Conversion/Continuation, (ii) the Committed Advances to
be Converted/Continued, and (iii) if such Conversion/Continuation is into
Eurocurrency Rate Committed Advances, the duration of the Interest Period for
each such Advance.
In the case of a Notice of Conversion/Continuation relating to
Eurocurrency Rate Committed Advances in an Alternative Currency, the Agent
shall, at the request of the applicable Borrower, use its best efforts to
notify the Borrower as to an indicative interest rate with respect to such
proposed Continuation/Conversion by 9:00 A.M. (San Francisco time) the fourth
Business Day prior to the date of such Continuation/Conversion, and such
Borrower may, by notice to the Agent not later than 10:00 A.M. (San Francisco
time) on the fourth Business Day preceding the date of such proposed
Continuation/Conversion, withdraw such Notice of Continuation/ Conversion and
submit a new Notice of Continuation/ Conversion not denominated in an
Alternative Currency, and if so withdrawn prior to such time, Borrower shall
not be obligated to pay any costs which might otherwise be payable pursuant
to
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Section 2.06(c) in connection with the Borrower's failure to so Continue;
PROVIDED, HOWEVER, the failure of the Agent to so notify the Borrower shall
not relieve such Borrower of any of its obligations hereunder, including its
obligation to Continue such Eurocurrency Rate Committed Advances on the date
of the Continuation specified in such Notice of Continuation/Conversion; and
PROVIDED, FURTHER, notwithstanding anything to the contrary, in no event
shall the Agent have any liability to any Borrower for failing to notify a
Borrower of the interest rate on or prior to 9:00 A.M. such fourth Business
Day preceding such date of Conversion or Continuation.
In the case of a Notice of Conversion/Continuation with respect to
Eurocurrency Rate Committed Advances denominated in an Alternative Currency,
in the event any Lender notifies the Agent that it is no longer able to
continue such Advance in an Alternative Currency (whether due to changes in
the interbank market or changes in funding capabilities of such Lender,
including, without limitation, changes due to such Lender's decision to close
a funding office or not to book loans in such Alternative Currency), such
Lender shall notify the Agent of such fact no later than the later of (x)
10:00 A.M. (San Francisco time) on the fourth Business Day preceding the
requested effective date of such Continuation or (y) one hour after being
notified by the Agent of the relevant Notice of Conversion/Continuation. The
Agent shall promptly notify the other Lenders and the Borrower of the receipt
of any such notice and the relevant Notice of Conversion/Continuation shall
be deemed to be withdrawn by the relevant Borrower. The Borrower shall not
be obligated to pay any costs which might otherwise be payable pursuant to
Section 2.06(c) in connection with any Notice of Conversion/Continuation
withdrawn or deemed withdrawn, in accordance with this paragraph.
(b) NOTICES IRREVOCABLE. Except as otherwise provided herein, each
notice by a Borrower under this Section 2.06 shall be irrevocable, and the
Borrowers shall indemnify each Lender against any reasonable direct
out-of-pocket loss, cost or expenses incurred by such Lender as a result of any
failure by the Borrower to fulfill on or before the date specified by such
notice the applicable conditions set forth in this Section 2.06 or Article IV.
The Agent promptly (and in any event within one Business Day) will give each
Lender notice of each Notice of Conversion/Continuation received by it.
(c) ALTERNATIVE CURRENCY CONVERSION. Notwithstanding anything herein
to the contrary, upon the occurrence and continuation of an Event of Default
resulting from the failure of a Borrower to make any payment of principal or
interest on any Obligation, upon notice from the Agent, all of the Advances
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denominated in an Alternative Currency shall automatically be converted to
Base Rate Advances in a principal amount equal to the Dollar equivalent of
such Alternative Currency on the date of such conversion. Such Borrower
shall be responsible for all costs associated with such conversion to the
full extent of each indemnity provided herein in connection with a conversion
prior to the last day of an Interest Period.
2.07 BID BORROWINGS.
(a) In addition to Committed Borrowings pursuant to Section 2.02,
each Lender severally agrees that Sunrise may, as set forth in Section 2.08,
from time to time request the Lenders prior to the Final Maturity Date to
submit offers to make Bid Advances to such Borrower; PROVIDED, HOWEVER, that
the Lenders may, but shall have no obligation to, submit such offers and such
Borrower may, but shall have no obligation to, accept any such offers;
PROVIDED, FURTHER, that no Bid Advance shall be made if, after giving effect
to such Bid Advance and the other Bid Advances to be made by the other
Lenders as part of the same Bid Borrowing, (a) the Facility Usage shall
exceed the Total Commitment, (b) the outstanding aggregate principal amount
of all Bid Advances made by all Lenders shall exceed $137,500,000; or (c) the
number of Interest Periods for Bid Advances then outstanding plus the number
of Interest Periods for Committed Advances then outstanding exceeds 40.
(b) Each Lender may designate one Designated Bidder to have a right
to offer and make Bid Advances as a Lender pursuant to Sections 2.07 and
2.08; PROVIDED, HOWEVER, that (i) each such Lender shall retain the right to
make Bid Advances as a Lender, (ii) each such designation shall be of a
Designated Bidder and (iii) the parties to each such designation shall
execute and deliver to the Agent, for its acceptance, an agreement and
acknowledgment substantially in the form of Exhibit N hereto, whereby such
Designated Bidder agrees to be bound by the terms and conditions of this
Agreement as a Lender for purposes of Bid Advances. Upon the Agent accepting
an appropriately completed agreement and acknowledgment, the Designated
Bidder shall be deemed to be a direct party to this Agreement as a Lender for
purposes of Bid Advances only, and each reference to "Lender" in Section
2.07(a) and 2.08 (and the defined terms used therein) shall be deemed to
include a reference to each Designated Bidder. Except (A) that each
Designated Bidder shall be solely responsible to the other parties hereto for
the performance of its obligations relating to its Bid Advances, and (B) for
the right of each Designated Bidder to offer and make Bid Advances (and
receive notices directly from the Agent in connection therewith) and to
receive payments as a Lender with respect to its Bid Advances, each
Designated Bidder shall be deemed to have
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only the rights of a participant in a Bid Advance hereunder, as set forth in
(and limited by) Section 11.08(g) (but with no rights under Section 2.13(a),
3.07, 11.02, 11.08, 11.10 or 11.14), and the Agent shall be entitled to deal
solely with the Lender designating such Designated Bidder for all matters,
including voting. Upon the request of the Designated Bidder made through the
Agent, Sunrise shall execute and deliver a Bid Advance Note to evidence Bid
Advances made by each Designated Bidder. A Lender may revoke any designation
of a Designated Bidder at any time upon written notice to the Agent, but such
revocation shall not affect the rights and obligations of a Designated Bidder
as to any of its Bid Advances remaining outstanding.
2.08 PROCEDURE FOR BID BORROWINGS.
(a) When Sunrise wishes to request the Lenders to submit offers to
make Bid Advances hereunder, it shall transmit to the Agent by telephone call
followed promptly by facsimile transmission a notice in substantially the
form of Exhibit J (a "Competitive Bid Request") so as to be received no later
than 9:00 a.m. (San Francisco time) (x) four Business Days prior to the date
of a proposed Bid Borrowing in the case of a Eurocurrency Auction, or (y) one
Business Day prior to the date of a proposed Bid Borrowing in the case of an
Absolute Rate Auction, specifying: (i) the date of such Bid Borrowing, which
shall be a Business Day; (ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of $5,000,000 or in multiples of $1,000,000
in excess thereof; (iii) whether the Competitive Bids requested are to be for
Eurocurrency Rate Bid Advances or Absolute Rate Bid Advances or both; and
(iv) the duration of the Interest Period applicable thereto, subject to the
provisions of the definition of "Interest Period" herein. Subject to
subsection 2.08(c), such Borrower may not request Competitive Bids for more
than four Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than twice in any period of five Business Days.
Sunrise shall pay to the Agent for the Agent's sole benefit a bid auction
fee of $400 on the day of each Absolute Rate Auction and Eurocurrency Auction.
(b) Upon receipt of a Competitive Bid Request, the Agent will
promptly send to the Lenders by facsimile transmission an Invitation for
Competitive Bids, which shall constitute an invitation by Sunrise to each
Lender to submit Competitive Bids offering to make the Bid Advances to which
such Competitive Bid Request relates in accordance with this Section 2.08.
(c) (i) Each Lender may at its discretion submit a Competitive
Bid containing an offer or offers to make
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Bid Advances in response to any Invitation for Competitive Bids. Each
Competitive Bid must comply with the requirements of this subsection
2.08(c) and must be submitted to the Agent by facsimile transmission
at the Agent's office for notices set forth on Schedule 11.06 hereto
not later than 7:00 a.m. (San Francisco time) (1) three Business Days
prior to the proposed date of Borrowing, in the case of a Eurocurrency
Auction or (2) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction; PROVIDED that Competitive Bids submitted by Bank
of America (or any Affiliate of Bank of America) in the capacity of a
Lender may be submitted, and may only be submitted, if Bank of America or
such Affiliate notifies the Agent of the terms of the offer or offers
contained therein not later than 6:45 a.m. (San Francisco time) (A)
three Business Days prior to the proposed date of Borrowing, in the
case of a Eurocurrency Auction or (B) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the
form of Exhibit L, specifying therein: (A) the proposed date of
Borrowing; (B) the principal amount of each Bid Advance for which such
Competitive Bid is being made, which principal amount (x) may be equal
to, greater than or less than the Commitment of the quoting Lender,
(y) must be $5,000,000 or in multiples of $1,000,000 in excess
thereof, and (z) may not exceed the principal amount of Bid Advances
for which Competitive Bids were requested; (C) in case the Borrower
elects a Eurocurrency Auction, the margin above or below the
Eurocurrency Rate (the "Eurocurrency Rate Bid Margin") offered for
each such Bid Advance, expressed as a percentage (rounded to the
nearest 1/100th of 1%) to be added to or subtracted from the
Eurocurrency Rate and the Interest Period applicable thereto; (D) in
case the Borrower elects an Absolute Rate Auction, the rate of
interest per annum (rounded upward to the nearest 1/100th of 1%) (the
"Absolute Rate") offered for each such Bid Advance; and (E) the
identity of the quoting Lender. A Competitive Bid may contain up to
three separate offers by the quoting Lender with respect to each
Interest Period specified in the related Invitation for Competitive
Bids.
(iii) Any Competitive Bid shall be disregarded if it: (A)
is not substantially in conformity with Exhibit L or does not specify
all of
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the information required by subsection (c)(ii) of this Section;
(B) contains qualifying, conditional or similar language; (C) proposes
terms other than or in addition to those set forth in the applicable
Invitation for Competitive Bids; or (D) arrives after the time set
forth in subsection (c)(i).
(iv) Notwithstanding anything to the contrary contained in
this section, a Competitive Bid by Bank of America may contain, and
will not be disregarded if it does contain, a restriction on the use
of proceeds consistent with Section 2.21.
(d) Promptly on receipt and not later than 7:30 a.m. (San Francisco
time) (i) three Business Days prior to the proposed date of Borrowing in the
case of a Eurocurrency Auction, or (ii) on the proposed date of Borrowing, in
the case of an Absolute Rate Auction, the Agent will notify Sunrise of the terms
(A) of any Competitive Bid submitted by a Lender that is in accordance with
subsection 2.08(c), and (B) of any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid submitted by such Lender
with respect to the same Competitive Bid Request. Any such subsequent
Competitive Bid shall be disregarded by the Agent unless such subsequent
Competitive Bid is submitted solely to correct a manifest error in such former
Competitive Bid and only if received within the times set forth in subsection
2.08(c). The Agent's notice to the Borrower shall specify (1) the aggregate
principal amount of Bid Advances for which offers have been received for each
Interest Period specified in the related Competitive Bid Request; and (2) the
respective principal amounts and Eurocurrency Rate Bid Margins or Absolute
Rates, as the case may be, so offered. Subject only to the provisions of
Sections 2.05(g), 2.05(j) and 4.02 and the provisions of this subsection (d),
any Competitive Bid shall be irrevocable except with the written consent of the
Agent given on the written instructions of the Borrower.
(e) Not later than 8:00 a.m. (San Francisco time) (i) three Business
Days prior to the proposed date of Borrowing, in the case of a Eurocurrency
Auction, or (ii) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction, the Borrower shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection 2.08(d).
Such Borrower shall be under no obligation to accept any offer and may choose to
reject all offers. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that is accepted.
Such Borrower may accept any Competitive Bid in whole or in part; PROVIDED that:
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(i) the aggregate principal amount of each Bid Borrowing
may not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) the aggregate principal amount of Bid Borrowing on
each day must be $5,000,000 or in any multiple of $1,000,000 in excess
thereof;
(iii) acceptance of offers may only be made on the basis of
ascending Eurocurrency Rate Bid Margins or Absolute Rates within each
Interest Period, as the case may be; and
(iv) such Borrower may not accept any offer that is
described in subsection 2.08(c)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(f) If offers are made by two or more Lenders with the same
Eurocurrency Rate Bid Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which such
offers are accepted for the related Interest Period, the principal amount of Bid
Advances in respect of which such offers are accepted shall be allocated by the
Agent among such Lenders as nearly as possible (in such multiples, not less than
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Agent of the amounts of
Bid Advances shall be conclusive in the absence of manifest error.
(g) (i) The Agent will promptly notify each Lender having submitted
a Competitive Bid if its offer has been accepted and, if its offer has been
accepted, of the amount of the Bid Advance or Bid Advances to be made by it
on the date of the Bid Borrowing.
(ii) Each Lender, which has received notice pursuant to
subsection 2.08(g)(i) that its Competitive Bid has been accepted,
shall make the amounts of such Bid Advances available to the Agent for
the account of the Borrower at the Agent's Office, by 11:00 a.m. (San
Francisco time) in the case of Absolute Rate Bid Advances, and by
11:00 a.m. (San Francisco time) in the case of Eurocurrency Rate Bid
Advances, on such date of Bid Borrowing, in funds immediately
available to the Agent for the account of such Borrower at the Agent's
Office.
(iii) Promptly following each Bid Borrowing, the Agent
shall notify each Lender of the ranges of
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bids submitted and the highest and lowest Bids accepted for each Interest
Period requested by the Borrower and the aggregate amount borrowed pursuant
to such Bid Borrowing.
(iv) From time to time, the Borrower and the Lenders shall
furnish such information to the Agent as the Agent may request
relating to the making of Bid Advances, including the amounts,
interest rates, dates of borrowings and maturities thereof, for
purposes of the allocation of amounts received from such Borrower for
payment of all amounts owing hereunder.
(h) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of Borrowing
all applicable conditions to funding referenced in Sections 4.01 and 4.02 are
satisfied, the Lender or Lenders whose offers Sunrise has accepted will fund
each Bid Advance so accepted. Nothing in this Section 2.08 shall be construed
as a right of first offer in favor of the Lenders or to otherwise limit the
ability of the Borrower to request and accept credit facilities from any Person
(including any of the Lenders), provided that no Default or Event of Default
would otherwise arise or exist as a result of such Borrower executing,
delivering or performing under such credit facilities.
(i) Each outstanding Bid Advance shall be deemed to utilize the
Commitment of each lender by an amount equal to such Lender's Pro Rata Share
TIMES the amount of such Bid Advance.
2.09 THE SWING LINE.
(a) AVAILABILITY. The Swing Line Lender shall from time to time
through the day prior to the Final Maturity Date make Swing Line Advances in
Dollars to Sunrise in such amounts as Sunrise may request, PROVIDED that
(i) giving effect to such Swing Line Advance, the Swing Line Outstandings shall
not exceed $10,000,000 and the Facility Usage shall not exceed the Total
Commitment, (ii) without the consent of the Majority Lenders, no Swing Line
Advance may be made during the continuation of an Event of Default and (iii) the
Swing Line Lender has not given at least twenty-four (24) hours prior notice to
Sunrise that availability under the Swing Line is suspended or terminated.
Sunrise may borrow, repay and reborrow under this Section. Unless notified to
the contrary by the Swing Line Lender, Borrowings under the Swing Line may be
made in a minimum amounts of $100,000 and multiples of $25,000 in excess thereof
upon telephonic request made to the Swing Line Lender not later than 3:00 p.m.,
San Francisco time, on the Business Day of the requested Borrowing (which
telephonic request shall be promptly
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confirmed in writing by a Senior Officer of Sunrise by telecopier with
telephonic notice to the Agent). Promptly after receipt of such a request
for borrowing, the Swing Line Lender shall obtain telephonic verification
from the Agent that, giving effect to such request, availability for Advances
will exist under Section 2.01(a) (and such verification shall be promptly
confirmed in writing by telecopier). Unless notified to the contrary by the
Swing Line Lender, each repayment of a Swing Line Advance shall be in an
amount which is an integral multiple of $25,000. If Sunrise instructs the
Swing Line Lender to debit its demand deposit account at the Swing Line
Lender in the amount of any payment with respect to a Swing Line Advance, or
the Swing Line Lender otherwise receives repayment, after 3:00 p.m., San
Francisco time, on a Business Day, such payment shall be deemed received on
the next Business Day. The Swing Line Lender shall promptly notify the Agent
of the Swing Advance Outstandings each time there is a change therein. The
Swing Line Lender may at any time in its sole discretion notify Sunrise that
availability under the Swing Line is suspended or terminated.
(b) REPAYMENT OF SWING LINE ADVANCES. In the event that there are
Swing Line Outstandings on five (5) consecutive Business Days, then on the next
Business Day (unless Sunrise has made other arrangements acceptable to the Swing
Line Lender to reduce the Swing Line Outstandings to zero), Sunrise shall
request a Committed Advance pursuant to Section 2.02(a) in an amount complying
with Section 2.01 and sufficient to reduce the Swing Line Outstandings to zero.
The Agent shall automatically provide such amount directly to the Swing Line
Lender (which the Swing Line Lender shall then apply to the Swing Line
Outstandings) and credit any balance of the Committed Advance in immediately
available funds as provided in Section 2.02(d). In the event that Sunrise fails
to request a Committed Advance within the time specified by Section 2.02 on any
such date, the Agent may, but is not required to, without notice to or the
consent of Sunrise, cause Committed Advances to be made by the Lenders under the
Commitments in the amount necessary to comply with Section 2.01 and sufficient
to reduce the Swing Line Outstandings to $5,000,000 and, for this purpose, the
conditions precedent set forth in Sections 4.01 and 4.02 shall not apply. The
proceeds of such Committed Advances shall be paid to the Swing Line Lender for
application to the Swing Line Outstandings.
(c) PURCHASE OF PARTICIPATIONS. Upon the making of a Swing Line
Advance, each Lender shall be deemed to have purchased from the Swing Line
Lender a participation therein in an amount equal to that Lender's Pro Rata
Share of the Commitment TIMES the amount of the Swing Line Advance. Upon demand
made by the Swing Line Lender, each Lender shall, according to its Pro Rata
Share of the Commitment, promptly provide to the Swing Line Lender its
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purchase price therefor in an amount equal to its participation therein. The
obligation of each Lender to so provide its purchase price to the Swing Line
Lender shall be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event.
2.10 REDUCTION OF COMMITMENTS.
(a) VOLUNTARY REDUCTIONS. Sunrise shall have the right, upon
written notice to the Agent not later than 10:00 A.M. (San Francisco Time) on
the fifth Business Day prior thereto, to terminate in whole or reduce ratably
in part the unused portions of the respective Commitments of the Lenders;
PROVIDED, HOWEVER, that each partial reduction shall be in the amount of
$5,000,000 or any multiple of $l,000,000 in excess thereof. At the direction
of Sunrise, any voluntary reduction made pursuant to this Section 2.10(a) may
be credited against the next scheduled reductions required pursuant to
Section 2.10(b).
(b) SCHEDULED REDUCTIONS. The Total Commitment shall automatically
reduce on each Amortization Date by an amount equal to the Amortization
Amount unless the Final Maturity Date is extended within the three months
preceding such Amortization Date in accordance with Section 2.10(c) below, in
which case each Amortization Date shall be delayed by one year. The Total
Commitment shall be reduced to zero on the Final Maturity Date.
(c) EXTENSION OF FINAL MATURITY DATE. Provided that there is no
Default or Event of Default and Borrower has theretofore delivered to the
Lenders the financial statements required under Section 6.01(b) for the
immediately preceding Fiscal Year and the projected financial statements
required under Section 6.01(c) for the forthcoming Fiscal Years, Borrower may
by delivery of a Request for Extension to the Agent and the Lenders request
that the Final Maturity Date be extended by one year. The Request for
Extension shall not be delivered earlier than March 14, commencing March 14,
1996, nor later than April 15 in any year. Each Lender shall use its best
efforts to respond either affirmatively or negatively (in its sole and
absolute discretion) to such Request for Extension by written notice to
Borrower and the Agent within thirty days after receipt thereof from
Borrower. If each Lender so notifies Borrower and the Agent in writing that
such Lender consents to the extension of the Final Maturity Date, then the
Agent shall by written notice to Borrower and the Lenders in the form of a
Certificate of Extension certify that the Final Maturity Date has been so
extended and the term "Final Maturity Date" shall be deemed amended to mean
the date which is the January 15 subsequent to the then effective Final
Maturity Date. If any Lender, in its sole and absolute discretion, notifies
Borrower and the Agent in
- 53 -
writing within said thirty-day period that it does not consent to such
extension of the Final Maturity Date, or fails to respond in writing within
said thirty-day period, the Final Maturity Date shall not be so extended.
Notwithstanding the fact that the Final Maturity Date is not extended
pursuant to any Request for Extension, the Borrower may nonetheless request a
one-year extension the following year.
2.11 MANDATORY PREPAYMENTS.
(a) REDUCTION IN COMMITMENTS. If, at any time, the Facility Usage
shall exceed the then existing Commitments of the Lenders, the Borrowers shall
(i) prepay at least such amount of the outstanding principal amount of Advances
and/or (ii) cash collateralize at least such amount of Outstanding Letter of
Credit Liability and/or Advances, as is necessary to make the then existing
Facility Usage less than or equal to the then existing Commitments of the
Lenders; PROVIDED, HOWEVER, that all such prepayments shall be made as specified
by the applicable Borrower, and if not so specified, in the order set forth in
Section 2.15(e). All prepayments of Advances pursuant to this Section 2.11(a),
except in the case of prepayments of Base Rate Advances, shall be made together
with accrued interest to the date of such payment on the principal amount
repaid, together with any amounts payable under Section 2.20.
(b) ALTERNATIVE CURRENCY EXCHANGE RATE FLUCTUATIONS. If the Dollar
equivalent of the aggregate outstanding principal amount of all Committed
Advances denominated in Alternative Currencies exceeds the Alternative Currency
Sublimit, the Borrowers shall, as of the last day of each Interest Period with
respect to an Alternative Currency which ends thereafter, repay Advances
denominated in Alternative Currencies or cash collateralize such Advances in
either case in an amount equal to the lesser of (i) the amount by which the
Dollar equivalent of outstanding Alternative Currencies exceeds the Alternative
Currency Sublimit on the last day of such Interest Period and (ii) the Dollar
equivalent of the Advance with respect to which such Interest Period is
expiring.
(c) OTHER MANDATORY PREPAYMENTS. If the Borrowers are required to
make any mandatory prepayments of Advances pursuant to Section 7.06(e), 7.06(f)
or 7.12(d), the Borrowers shall prepay such advances on the required date (the
"prepayment date") together with, in the case of prepayment of Eurocurrency Rate
Committed Advances, (i) accrued interest to the date of such prepayment on the
principal amounts prepaid and (ii) any additional amount for which the Borrowers
shall be obligated pursuant to Section 2.20. Any prepayments pursuant to this
section shall be applied first to Base Rate Advances then
- 54 -
outstanding and then to Eurocurrency Rate Committed Advances with the
shortest Interest Periods remaining; PROVIDED, HOWEVER, that if any
prepayment of Eurocurrency Rate Committed Advances on any prepayment date
would result in the Borrowers being required to pay any amounts pursuant to
Section 2.20, the Borrowers may wait to prepay such Eurocurrency Rate
Committed Advances until the earlier of (x) the date the Interest Periods
relating to such Eurocurrency Rate Committed Advances expires and (y) 10 days
after such prepayment date.
2.12 OPTIONAL PREPAYMENTS. The Borrowers may, upon at least four
Business Days' written notice to the Agent in the case of Eurocurrency Rate
Committed Advances and on the date of prepayment to the Agent in the case of
Base Rate Advances, stating the proposed date and aggregate principal amount of
the prepayment (and if such notice is given the Borrowers shall), prepay, in
whole or in part, the outstanding principal amounts of the Advances comprising
the same Committed Borrowing, together with, in the case of prepayment of
Eurocurrency Rate Committed Advances, (i) accrued interest to the date of such
prepayment on the principal amounts prepaid and (ii) any additional amount for
which the Borrowers shall be obligated pursuant to Section 2.20; PROVIDED,
HOWEVER, that each partial prepayment shall be in an aggregate principal amount
not less than $500,000 or any multiple of $100,000 (or the equivalent thereof in
an Alternative Currency) in excess thereof, except with respect to Base Rate
Advances, which shall be in an aggregate principal amount not less than $300,000
or any multiple of $100,000 in excess thereof, and if not otherwise specified by
the applicable Borrower, shall be applied in accordance with Section 2.15(e);
PROVIDED, FURTHER, that no partial prepayment of any Eurocurrency Rate Committed
Advances denominated in an Alternative Currency and comprising part of the same
Committed Borrowing shall be permitted if less than $1,500,000 Dollar equivalent
principal amount of such Advances shall remain outstanding after giving effect
to such prepayment. Bid Advances may not be voluntarily prepaid without the
consent of the Lender making such Bid Advance.
2.13 INCREASED COSTS. (a) If, due to either (i) the enactment or
issuance of or any change (including, without limitation, any change by way of
imposition or increase of reserve requirements other than as provided in the
definition of Eurocurrency Rate Reserve Percentage in Section 1.01) in or in the
interpretation of any law or regulation by any governmental or regulatory body
or agency having jurisdiction over the Lenders or (ii) the compliance by any
Lender with any written guideline or request from any central bank or other
governmental authority having jurisdiction, whether or not having the force of
law, there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurocurrency Rate
- 55 -
Committed Advances, then the Borrowers shall from time to time, upon demand
by such Lender (with a copy of such demand to the Agent), promptly (and in
any event within five Business Days) pay to the Agent for account of such
Lender additional amounts sufficient to reimburse such Lender for such
increased cost. Any Lender making a demand under this Section 2.13(a) shall
promptly notify the Borrowers of the event or condition giving rise to such
demand; provided however that, failure to give such notice promptly shall not
relieve the Borrowers of any obligation or liability hereunder. A
certificate as to the amount of such increased costs setting forth in
reasonable detail the basis for the calculations of such increased costs
shall be submitted to the Borrowers and the Agent by such Lender and such
certificate shall be conclusive and binding for all purposes, absent manifest
error.
(b) If, at any time after the Closing Date, any Lender determines
that compliance with any law or regulation as adopted, amended or otherwise
modified after the Closing Date or with any written guideline or request from
any central bank or other governmental authority having jurisdiction published
after the Closing Date, whether or not having the force of law, has or would
have the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender (whether by increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender or otherwise) as a consequence of, or with reference to,
such Lender's Commitments or its making or maintaining Committed Advances below
the rate that the Lender or any such other corporation, as the case may be,
could have achieved but for compliance therewith (taking into account the
policies of such Lender or any such corporation with regard to capital), then
the Borrowers shall from time to time, upon demand by such Lender (with a copy
of such demand to the Agent), promptly (and in any event within five Business
Days) pay to such Lender additional amounts sufficient to compensate such Lender
or any such other corporation, as the case may be, for such reduction. A
certificate setting forth in reasonable detail the basis for the calculation of
such amounts shall be submitted to the Borrowers and the Agent by such Lender,
which certificate shall be conclusive and binding for all purposes, absent
manifest error.
(c) Upon any Lender (an "Affected Lender") (i) making a claim for
compensation pursuant to this Section 2.13, or (ii) giving a notice under
Section 2.05(f) or (g) and Section 3.07(a) and (b), the Borrower may: (A)
request the Affected Lender to use its reasonable efforts to obtain a
replacement bank or financial institution satisfactory to the Borrower to
acquire and assume all or part of such Affected Lender's Advances and Commitment
pursuant to a Commitment Assignment and Acceptance (a
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"Replacement Lender"); (B) request one more of the other Lenders to acquire
and assume all or part of such Affected Lender's Advances and Commitment; or
(C) designate a Replacement Lender. Any such designation of a Replacement
Lender under clause (A) or (C) shall be subject to the prior written consent
of the Agent (which consent shall not be unreasonably withheld). This
section shall not affect or limit the rights of any Affected Lender under
Section 2.05(f) or 2.13 in respect of any period prior to such Lender being
replaced hereunder.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.13 shall survive the payment in full of the Obligations.
2.14 EVIDENCE OF DEBT. (a) The Committed Advances made by each Lender
shall be evidenced by one or more loan accounts or records maintained by such
Lender in the ordinary course of business. The loan accounts or records
maintained by the Agent and each Lender shall be conclusive absent manifest
error of the amount of the Committed Advances made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure so to record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrowers hereunder to pay any amount owing with respect to
the Committed Advances.
(b) The Committed Advances made by such Lender may, at the request of
a Lender, be evidenced by one or more Committed Advance Notes, instead of loan
accounts. Each such Lender shall endorse on the schedules annexed to its
Committed Advance Note(s) the date, amount and maturity of each Committed
Advance made by it and the amount of each payment of principal made by each
Borrower with respect thereto. Each such Lender is irrevocably authorized by
the Borrowers to endorse its Committed Advance Note(s) and each Lender's record
shall be conclusive absent manifest error; PROVIDED, HOWEVER, that the failure
of a Lender to make, or an error in making, a notation thereon with respect to
any Committed Advance shall not limit or otherwise affect the obligations of the
Borrowers hereunder or under any such Committed Advance Note to such Lender.
(c) The Bid Advances made by such Lender shall be evidenced by one or
more Bid Advance Notes, instead of loan accounts. Each such Lender shall
endorse on the schedules annexed to its Bid Advance Note(s) the date, amount and
maturity of each Bid Advance made by it and the amount of each payment of
principal made by each Borrower with respect thereto. Each such Lender is
irrevocably authorized by the Borrowers to endorse its Bid Advance Note(s) and
each Lender's record shall be conclusive absent manifest error; PROVIDED,
HOWEVER, that the failure of a
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Lender to make, or an error in making, a notation thereon with respect to any
Bid Advance shall not limit or otherwise affect the obligations of the
Borrowers hereunder or under any such Bid Advance Note to such Lender.
(d) The Swing Line Advances shall be evidenced by one or more loan
accounts maintained by the Swing Line Lender in the ordinary course of business,
and such accounts shall be presumptive evidence of the principal amount owing
under the Swing Line. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower to pay
any amount owing with respect to Swing Line Advances; PROVIDED, HOWEVER, that
the Swing Line Lender may request such Borrower to execute and deliver a
promissory note to evidence the Swing Line Advances, and such Borrower agrees to
execute and deliver such a promissory note, and such other Swing Line Documents
as the Swing Line Lender may from time to time reasonably request.
2.15 PAYMENTS AND COMPUTATIONS. (a) Except as provided in
Section 2.16, the Borrowers shall pay all amounts due to the Agent, Lenders and
the Issuing Lender hereunder or under any other Loan Document to which it is a
party (except, in each case, with respect to principal of, interest on and other
amounts relating to, Advances denominated in an Alternative Currency),
irrespective of, and without condition or deduction for, any counterclaim,
defense, recoupment or setoff, in lawful money of the United States and in same
day funds delivered to the Agent not later than 12:00 noon (San Francisco time)
on the day when due in Dollars by deposit of such funds to the Agent's Account
maintained for payments in Dollars. The Borrowers shall make each payment due
hereunder with respect to principal of, interest on and other amounts relating
to Advances denominated in an Alternative Currency not later than 9:00 a.m.
(local time for the city specified for such Alternative Currency on Schedule
1.01(a)) on the day when due in such Alternative Currency to the Agent in same
day funds by deposit of such funds to the Agent's Account maintained for
payments in such Alternative Currency. The Agent will promptly thereafter cause
to be distributed like funds relating to the payment of principal (including
reimbursement for payments under Letters of Credit), interest, or commitment
fees, or letter of credit fees ratably (other than amounts payable to any Lender
or the Issuing Lender pursuant to Section 2.03(a), 2.08, 2.09, 2.13, 2.20 or
3.07 or amounts subject to Taxes pursuant to Section 2.16) to the Lenders, for
the account of their respective Applicable Lending Offices, or the Issuing
Lender and like funds relating to the payment of any other amount payable to any
Lender or the Issuing Lender to such Lender, for the account of its Applicable
Lending Office, or to the Issuing Lender, in each case to be applied in
accordance with, and
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subject to, the terms of this Agreement. Upon its acceptance of a
Commitment Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 11.08, from and after
the effective date specified in such Commitment Assignment and Acceptance,
the Agent shall make all payments hereunder and under any other Loan Document
in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) Each Borrower hereby authorizes each Lender and the Issuing
Lender if and to the extent payment owing to such Lender or the Issuing Lender,
as the case may be, from the Borrower is not made when due hereunder to charge
from time to time against any or all of such Borrower's accounts (other than any
trust or segregation account maintained for the benefit of any Person that is
not a Subsidiary or an Affiliate any of the Borrowers) with such Lender or the
Issuing Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Eurocurrency Rate
(other than with respect to Pound Sterling denomination) or the Federal Funds
Rate and of commitment and letter of credit fees shall be made by the Agent on
the basis of a year of 360 days, and computations of interest based on the Base
Rate or Eurocurrency Rate with respect to Pound Sterling denominations shall be
made by the Agent on the basis of a year of 365 or 366 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes absent manifest error.
(d) Unless the Agent shall have received notice from the applicable
Borrower prior to the date on which any payment is due to the Lenders or the
Issuing Lender, as the case may be, hereunder that such Borrower will not make
such payment in full to the Agent, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender or the
Issuing Lender, as the case may be, on such due date an amount equal to the
amount then due to such Lender or the Issuing Lender, as the case may be. If
and to the extent such Borrower shall not have so made such payment in full to
the Agent, each Lender or the Issuing Lender, as the case may be, shall repay to
the Agent forthwith on demand such amount distributed to such Lender or the
Issuing Lender, as the case may be, together with interest thereon, for each day
from the date such amount is distributed to such Lender or the Issuing Lender,
as the case may be, until the date such Lender or the Issuing Lender,
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as the case may be, repays such amount to the Agent, at the Federal Funds
Rate or, in the case of a payment in an Alternative Currency, the Overnight
Rate.
(e) Amounts received by the Agent for application to amounts due and
payable to the Agent, the Lenders or the Issuing Lender shall be applied, if not
specified by the applicable Borrower or if received after the occurrence and
continuance of an Event of Default, to amounts due and payable as follows:
FIRST, to any amounts due and payable under Section 11.03, SECOND, to the
ratable payment of any accrued interest or fees that are then due and payable,
THIRD, to the payment of the outstanding Swing Line Advances, FOURTH, to the
ratable payment of the outstanding Base Rate Advances, FIFTH to the ratable
payment of other outstanding Advances in the order of nearest expiring Interest
Periods, and SIXTH, to cash collateralize Letter of Credit Liability, together
with, in the case of payment of Eurocurrency Rate Advances, any additional
amount for which the Borrowers shall be obligated in respect of the payment of
Eurocurrency Rate Advances pursuant to Section 2.20. Any cash collateralization
of Letter of Credit Liability pursuant to this Section 2.15(e) shall be effected
by documentation prepared by the Issuing Lender having terms consistent with
those in documentation customarily employed by the Issuing Lender for purposes
of establishing and maintaining cash collateral for letters of credit issued by
the Issuing Lender. Payments for reimbursement of amounts drawn under any
Letter of Credit shall be applied as set forth in Section 3.04(c).
2.16 TAXES. (a) Subject to subsection (e) below, any and all payments
by the Borrowers hereunder or any other Loan Document shall be made, in
accordance with Section 2.15, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, EXCLUDING, (i) in the
case of each Lender, the Issuing Lender and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender, the Issuing Lender or the Agent (as the case may be) is
organized or any political subdivision thereof, (ii) in the case of each Lender
and the Issuing Lender, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of such Lender's Applicable Lending Office or of the
Issuing Lender's office through which it Issues Letters of Credit, as the case
may be, or any political subdivision thereof and (iii) in the case of each
Lender, the Issuing Lender and the Agent, taxes imposed by the United States by
means of withholding taxes if and to the extent that such withholding taxes
shall be in effect and shall be applicable on the date hereof under current laws
and
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regulations (including judicial and administrative interpretations thereof)
to payments to be made for the account of such Lender's Applicable Lending
Office or to the Issuing Lender or to the Agent (all taxes described in
subclauses (i), (ii) and (iii) being referred to as "EXCLUDED TAXES" and all
taxes, levies, imposts, deductions, charges, withholdings and liabilities not
described in subclauses (i), (ii) and (iii) being hereinafter referred to as
"TAXES"). If any Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any other Loan Document
to any Lender, the Issuing Lender or the Agent, (x) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.16) such Lender, the Issuing Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (y) such Borrower shall make such deductions and (z)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery or registration or filing or
recording of, or otherwise with respect to, this Agreement or any other Loan
Document (including, without limitation, tangible or intangible property or ad
valorem taxes) or document delivered hereunder or under any other Loan Document
(hereinafter referred to as "OTHER TAXES").
(c) The Borrowers will indemnify each Lender, the Issuing Lender and
the Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.16) paid by such Lender, the Issuing Lender or the
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall
be made within 30 days from the date such Lender, the Issuing Lender or the
Agent (as the case may be) makes written demand therefor, which demand shall
specify in reasonable detail the basis for such demand.
(d) Within 30 days after the date of any payment of Taxes by the
Borrower, the Borrowers will furnish to the Agent, at its address referred to in
Section 11.06, the original or a certified copy of a receipt or other evidence
satisfactory to the Agent of payment thereof.
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(e) Prior to the date of the initial Committed Borrowing in the case
of each Lender or Issuance of the initial Letter of Credit in the case of the
Issuing Lender, on the date of the Commitment Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender, or if otherwise
requested from time to time by the Borrowers or the Agent, each Lender organized
under the laws of a jurisdiction outside the United States and the Issuing
Lender, if organized under the laws of a jurisdiction outside the United States,
shall provide the Agent and the Borrowers with three counterparts of each of the
forms prescribed by the Internal Revenue Service (Form 1001 or 4224, or
successor form(s), as the case may be) of the United States certifying as to
such Lender's or Issuing Lender's (if applicable) status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Lender or the Issuing Lender under any Loan
Document.
(f) Without affecting its rights under this Section 2.16 or any
provision of this Agreement, each Lender and the Issuing Lender agree that if
any Taxes or Other Taxes are imposed and required by law to be paid or to be
withheld from any amount payable to such Lender or its Applicable Lending Office
or the Issuing Lender, as the case may be, with respect to which any Borrower
would be obligated pursuant to this Section 2.16 to increase any amounts payable
to such Lender or the Issuing Lender, as the case may be, or to pay any such
Taxes or Other Taxes, such Lender shall use reasonable efforts to select an
alternative Applicable Lending Office and the Issuing Lender shall use
reasonable efforts to select an alternative office for purposes of issuing and
receiving payments in respect of Letters of Credit, as the case may be, which
would not result in the imposition of such Taxes or Other Taxes; PROVIDED,
however, that none of the Lenders or the Issuing Lender shall be obligated to
select any such alternative office if such Lender or the Issuing Lender, as the
case may be, determined that (i) as a result of such selection it would be in
violation of an applicable law, regulation or treaty or (ii) such selection
would result in additional costs to such Lender or the Issuing Lender, as the
case may be.
(g) Each Lender and the Issuing Lender agree with the Borrowers that
it will take all reasonable actions by all usual means (i) to secure and
maintain all benefits available to it under the provisions of any applicable tax
treaty concluded to which it may be entitled, if such benefit would reduce the
amount payable by the Borrowers in accordance with this Section 2.16, (ii)
otherwise to cooperate with the Borrowers to minimize the amount payable by any
Borrower pursuant to this Section 2.16 and (iii) to assist the Borrowers, at the
expense of the Borrowers,
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in contesting any such Taxes or Other Taxes; PROVIDED, HOWEVER, that none of
the Lenders or the Issuing Lender, as the case may be, shall be obliged to
disclose to any Borrower any information regarding its tax affairs or tax
computations, to reorder its tax affairs or tax planning pursuant hereto nor
to incur any cost or additional expense as a result thereof. If any Lender
or the Issuing Lender makes a demand under this Section 2.16 for the payment
by any Borrower of any Taxes or Other Taxes and as a result of any such
payment by such Borrower, such Lender or the Issuing Lender, as the case may
be, receives a direct cash benefit (either by the receipt of a refund or a
reduction in the amount of taxes otherwise payable), the Lender or the
Issuing Lender, as the case may be, receiving such direct cash benefit shall,
to the extent permitted by applicable law, refund the amount of such cash
benefit to the appropriate Borrower.
(h) So long as no Default or Event of Default shall have occurred and
be continuing, the Borrower may, within the 30-day period commencing on the day
that any Borrower receives a demand for the payment of Taxes or Other Taxes from
any Lender pursuant to this Section 2.16, or notification that Taxes or Other
Taxes may become due, demand that the Lender making such demand be replaced with
another commercial bank or other financial institution selected by the Borrower
and approved in writing by the Agent (which approval shall not be unreasonably
withheld or delayed). Upon any such demand by the Borrower, if the Agent shall
have approved the commercial bank or other financial institution selected by the
Borrower, the Lender that made a demand pursuant to this Section 2.16 shall
execute and deliver a Commitment Assignment and Acceptance to the Agent pursuant
to which such Lender shall assign all of its Commitment to the commercial bank
or other financial institution selected by the Borrower.
(i) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.16 shall survive the payment in full of the Obligations
hereunder for a period expiring concurrently with the expiration of the statute
of limitations applicable to claims made by the tax authorities to collect Taxes
or Other Taxes.
2.17 PAYMENTS ON BUSINESS DAYS. Whenever any payment hereunder shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; PROVIDED, HOWEVER, that if such extension would cause
payment of interest on or principal of Eurocurrency Rate Advances to be made in
the next following
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month, such payment shall be made on the next preceding Business Day.
2.18 SHARING OF PAYMENTS, ETC. If any Lender or the Issuing Lender
shall obtain any payment whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise (other than amounts payable to any
Lender or the Issuing Lender pursuant to Section 2.03(a), 2.08, 2.09, 2.13,
2.20 or 3.07 or amounts subject to Taxes pursuant to Section 2.16) in excess
of its ratable share of payments on account of the Committed Advances or
Letter of Credit Liability owing to all the Lenders, such Lender or the
Issuing Lender, as the case may be, shall forthwith purchase from the other
Lenders such participations in the Committed Advances or Letter of Credit
Liability owing to them as shall be necessary to cause such purchasing Lender
or the Issuing Lender, as the case may be, to share the excess payment
ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender or
the Issuing Lender, as the case may be, such purchase from each Lender shall
be rescinded and such Lender or the Issuing Lender, as the case may be, shall
repay to the purchasing Lender or the Issuing Lender, as the case may be, the
purchase price to the extent of such recovery, together with an amount equal
to such Lender's ratable share (according to the proportion of (i) the amount
of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable
by the purchasing Lender or the Issuing Lender, as the case may be, in
respect of the total amount so recovered. The Borrower agrees that any
Lender or the Issuing Lender, as the case may be, purchasing a participation
from another Lender pursuant to this Section 2.18, Section 3.04 or 11.08(g)
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of setoff) with respect to such participation as
fully as if such Lender or the Issuing Lender, as the case may be, were the
direct creditor of the Borrower in the amount of such participation.
2.19 CURRENCY EQUIVALENTS. For purposes of determining the amount
of any Advance, Conversion or Continuation requested pursuant to this Article
II, (i) the equivalent in Dollars of any Alternative Currency shall be
determined by using the quoted spot rate at which Bank of America's principal
office in London offers to exchange Dollars for such Alternative Currency in
London, England at 11:00 A.M. (London time) two Business Days prior to the
date on which such equivalent is to be determined, (ii) the equivalent in any
Alternative Currency of any other Alternative Currency shall be determined by
using the quoted spot rate at which Bank of America's principal office in
London offers to exchange such Alternative Currency for such other
Alternative
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Currency in London, England at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined, and (iii) the
equivalent in any Alternative Currency of Dollars shall be determined by
using the quoted spot rate at which Bank of America's principal office in
London offers to exchange such Alternative Currency for Dollars in London,
England at 11:00 A.M. (London time) two Business Days prior to the date on
which such equivalent is to be determined. For purposes of determining the
unused portion of each Lender's Commitment and the amount of any or all
Advances outstanding on any date (except for Advances to be Converted or
Continued pursuant to the Notice of Borrowing or the Notice of
Continuation/Conversion, as the case may be, with respect to which any
calculation is made), the calculations shall be based on the rate quoted by
Bank of America's principal office in London for offers to exchange such
Alternative Currency for the equivalent Dollar amount on the date of
determination.
2.20 FUNDING LOSSES. Except as otherwise provided, if any payment
of principal of, or any Conversion of, any Eurocurrency Rate Advance is made
by any Borrower to or for the account of a Lender other than on the last day
of the Interest Period for such Advance, as a result of a Conversion pursuant
to Section 2.06, a prepayment pursuant to Section 2.08 or 2.09, acceleration
of the maturity of the Advances pursuant to Section 9.02 or for any other
reason, the applicable Borrower shall, upon demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any reasonable direct
out-of-pocket loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
2.21 USE OF PROCEEDS. The Borrowers shall use the proceeds of
Advances to continue the Borrowers' outstanding obligations under the
Existing Credit Agreement and for the general working capital needs of the
Borrowers and for other general corporate purposes of the Borrowers,
including, without limitation, acquisitions permitted hereunder. The
Borrowers shall not, directly or indirectly, use any portion of any Advance
proceeds (i) knowingly to purchase Ineligible Securities from a Section 20
Subsidiary during any period in which such Section 20 Subsidiary makes a
market in such Ineligible Securities, (ii) knowingly to purchase during the
underwriting or placement period Ineligible Securities being underwritten or
privately placed by a Section 20 Subsidiary, or (iii) to make payments of
principal or interest on Ineligible Securities underwritten or privately
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placed by a Section 20 Subsidiary and issued by or for the benefit of the
Borrowers or any Affiliate of the Borrower. As used in this Section,
"Section 20 Subsidiary" means the Subsidiary of the bank holding company
controlling any Lender, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible
Securities; and "Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (as U.S.C. Section 24, Seventh), as
amended.
2.22 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for its share of any Advance in any
particular place or manner or to constitute a representation by any Lender
that it has obtained or will obtain the funds for its share of any Advance in
any particular place or manner.
2.23 BORROWER'S AGENT. Each Subsidiary Borrower hereby authorizes
Sunrise to execute and deliver on its behalf, and as its agent, any notice or
request permitted by or required of a Borrower under this Article II and
under Article III, and the Agent and the Lenders shall be entitled to rely on
any such notice or request delivered by Sunrise as if the same had been
delivered by such Subsidiary Borrower.
ARTICLE III
AMOUNT AND TERMS OF LETTERS OF
CREDIT AND PARTICIPATIONS THEREIN
3.01 LETTERS OF CREDIT. The Issuing Lender agrees, on the terms and
conditions hereinafter set forth, to Issue, including the continuance of the
letter(s) of credit issued under the Existing Credit Agreement as Letters of
Credit hereunder (the "Continuing Letters of Credit") for the account of any
Borrower, one or more Letters of Credit from time to time during the period
from the Closing Date until the date which occurs 90 days before the Final
Maturity Date in an aggregate undrawn amount not to exceed at any time
$25,000,000, each such Letter of Credit upon its Issuance to expire on or
before the earlier of (i) the date which occurs (x) in the case of Commercial
Letters of Credit, 180 days from the date of its Issuance and (y) in the case
of Standby Letters of Credit, 24 months from the date of its Issuance or (ii)
the Final Maturity Date; provided, however, that the Issuing Lender shall not
be obligated to Issue any Letter of Credit if:
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(i) after giving effect to the Issuance of such Letter of
Credit, the then existing Facility Usage shall exceed the Total Commitment;
or
(ii) the Agent or the Majority Lenders shall have notified the
Issuing Lender and the Borrower that no further Letters of Credit are to be
Issued by the Issuing Lender due to a continuing failure to meet any of the
applicable conditions set forth in Article IV, and such notice has not
expired or been withdrawn by the Agent or the Majority Lenders.
Within the limits of the obligations of the Issuing Lender set forth above,
any Borrower may request the Issuing Lender to Issue one or more Letters of
Credit, reimburse the Issuing Lender for payments made thereunder pursuant to
Section 3.03(a), and request the Issuing Lender to Issue one or more
additional Letters of Credit under this Section 3.01.
3.02 ISSUING THE LETTERS OF CREDIT. Except with respect to
Continuing Letters of Credit, which letters of credit are hereby
automatically incorporated herein without any further action, each Standby
Letter of Credit shall be Issued on at least three Business Days' notice and
each Commercial Letter of Credit shall be Issued on at least one Business
Day's notice, in each case from the applicable Borrower to the Issuing Lender
specifying the date, amount, expiry, and beneficiary thereof, accompanied by
such application and agreement for letter of credit as the Issuing Lender may
specify to the Borrower, each in form and substance satisfactory to the
Issuing Lender. On the date specified by such Borrower in such notice and
upon fulfillment of the applicable conditions set forth in Section 3.01 and
Article IV hereof, the Issuing Lender will Issue such Letter of Credit in the
form specified in such notice and such application and agreement for letter
of credit and shall promptly notify the Agent thereof.
3.03 REIMBURSEMENT OBLIGATIONS. (a) Notwithstanding any
provisions to the contrary in any application and agreement for letter of
credit applicable to any Letter of Credit, the applicable Borrower shall:
(i) pay to the Issuing Lender an amount equal to, and in
reimbursement for, each amount which the Issuing Lender pays under any
Letter of Credit on or before the earlier of (A) the time specified
therefor in the application and agreement for letter of credit applicable
to such Letter of Credit or (B) after timely notice by the Issuing Lender,
the date which occurs one Business Day after
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payment of such amount by the Issuing Lender under such Letter of Credit;
and
(ii) pay to the Issuing Lender interest on any amount remaining
unpaid under clause (i) above from the date on which the Issuing Lender
pays such amount under any Letter of Credit until such amount is reimbursed
in full to the Issuing Lender pursuant to clause (i) above, payable on
demand, at a fluctuating rate per annum equal to the Base Rate in effect
from time to time, PROVIDED that any such amount which is not reimbursed to
the Issuing Lender within one Business Day after notice thereof by the
Issuing Lender shall thereafter bear interest, until the amount is
reimbursed in full to such Issuing Lender pursuant to clause (i) above,
payable on demand, at the Default Rate in effect from time to time.
(b) All amounts to be reimbursed to the Issuing Lender in
accordance with subsection (a) above may, subject to the limitations set
forth in Section 2.01, be paid from the proceeds of Committed Advances. Each
Borrower hereby authorizes the Lenders, upon notice to the Borrower, to make
pursuant to Section 2.02(a) Committed Advances which are in the amounts of
the reimbursement obligations of the Borrower set forth in subsection (a)
above, and further authorizes the Agent (i) to give the Lenders, pursuant to
Section 2.02(a), a Notice of Borrowing with respect to the Committed
Borrowing comprised of such Advances (which shall be Base Rate Advances) and
(ii) to distribute the proceeds of such Advances to the Issuing Lender to pay
such amounts. Each Borrower agrees that all such Advances so made shall be
deemed to have been requested by it, and directs that all proceeds thereof
shall be used to pay such reimbursement obligations under subsection (a)
above.
(c) Notwithstanding any other provision of this Agreement, if a
Subsidiary Borrower shall be a party to this Agreement, the Obligations of
each such Borrower with respect to Letters of Credit Issued hereunder, in its
capacity as a Borrower, shall be several and not joint and several.
3.04 PARTICIPATIONS PURCHASED BY THE LENDERS. (a) On the date of
Issuance of each Letter of Credit (including the continuance of letters of
credit issued under the Existing Credit Agreement as Letters of Credit
hereunder, the Issuing Lender shall be deemed irrevocably and unconditionally
to have sold and transferred to each Lender without recourse or warranty, and
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from such Issuing Lender, an undivided interest and
participation, to the extent of such Lender's Pro Rata Share, in effect from
time to time, in such Letter of Credit
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and all Letter of Credit Liability relating to such Letter of Credit and all
Loan Documents securing, guarantying, supporting or otherwise benefiting the
payment of such Letter of Credit Liability. Promptly after the end of each
calendar month, the Agent will notify each Lender of the Letters of Credit
Issued during the prior month and of their dates of Issue, amounts, expiries
and reference numbers.
(b) In the event that any reimbursement obligation under Section
3.03(a) is not paid when due to the Issuing Lender with respect to any Letter
of Credit, the Issuing Lender shall promptly notify the Agent to that effect,
and the Agent shall promptly notify the Lenders of the amount of such
reimbursement obligation and each Lender shall immediately pay to the Issuing
Lender, in lawful money of the United States and in same day funds, an amount
equal to such Lender's Pro Rata Share then in effect of the amount of such
unpaid reimbursement obligation with interest at the Federal Funds Rate for
each day after such notification until such amount is paid to the Issuing
Lender.
(c) Promptly after the Issuing Lender receives a payment on account
of a reimbursement obligation with respect to any Letter of Credit, the
Issuing Lender shall promptly pay to the Agent, and the Agent shall promptly
pay to each Lender which funded its participation therein, in lawful money of
the United States and in the kind of funds so received, an amount equal to
such Lender's ratable share thereof.
(d) Upon the request of any Lender, the Issuing Lender shall
furnish to such Lender copies of any Letter of Credit and any application and
agreement for letter of credit and other documents related thereto as may be
reasonably requested by such Lender.
(e) The obligation of each Lender to make payments under subsection
(b) above shall be unconditional and irrevocable and shall be made under all
circumstances, including, without limitation, any of the circumstances
referred to in Section 3.06(b).
(f) If any payment received on account of any reimbursement
obligation with respect to a Letter of Credit and distributed to a Lender as
a participant under Section 3.04(c) is thereafter recovered from the Issuing
Lender in connection with any bankruptcy or insolvency proceeding relating to
any Borrower, each Lender which received such distribution shall, upon demand
by the Agent, repay to the Issuing Lender such Lender's ratable share of the
amount so recovered together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's
required repayment to (ii) the total
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amount so recovered) of any interest or other amount paid or payable by the
Issuing Lender in respect of the total amount so recovered.
3.05 LETTER OF CREDIT FEES. (a) The Borrowers hereby agree to pay
to the Issuing Lender a standby letter of credit fee equal to the greater of
$150 or 0.125% per annum of the face amount (as such amount may be reduced
from time to time pursuant to the terms of such letter of credit) for the
term of each Standby Letter of Credit quarterly in arrears on the last
Business Day of each quarter. In addition to such standby letter of credit
fee, the Borrowers hereby agree to pay to the Agent for the account of each
Lender (including the Issuing Lender, if applicable), according to each
Lender's Pro Rata Share, a fee equal to the Applicable Margin per annum of
the face amount (as such amount may be reduced from time to time pursuant to
the terms of such letter of credit) for the term of such Standby Letter of
Credit, quarterly in arrears on the last Business Day of each quarter.
(b) The Borrowers shall pay to the Agent for the account of each
Lender (including the Issuing Lender, if applicable), according to each
Lender's Pro Rata Share, and the Issuing Lender a letter of credit fee on
each Commercial Letter of Credit equal to the greater of $150 or .25% of the
negotiated face amount of such Commercial Letter of Credit quarterly in
arrears on the last Business Day of any quarter in which there has been any
negotiation thereof. Of such Commercial Letter of Credit fee, the Agent
shall pay to the Issuing Lender for its own account an amount equal to the
greater of $150 or 0.125% of the negotiated face amount of such Commercial
Letter of Credit.
(c) The Borrowers shall pay to the Issuing Lender, for its own
account and on demand, sums equal to standard fees (in addition to its letter
of credit fee payable pursuant to clause (a) above), charges and expenses,
including origination fees, that such Issuing Lender may impose, pay or incur
in connection with the Issuance, amendment, administration, transfer or
cancellation of any or all Letters of Credit or in connection with any
payment by such Issuing Lender thereunder. The Issuing Lender shall give the
applicable Borrower notice of any change in its standard fees, charges or
expenses payable by such Borrower to the Issuing Lender pursuant to this
Section 3.05(c); PROVIDED, HOWEVER, that any failure by the Issuing Lender to
give such notice shall not affect such Borrower's obligations under this
Section 3.05(c) to pay the Issuing Lender's reasonable current standard fees,
charges or expenses in accordance herewith.
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(d) All fees payable in respect of Letters of Credit shall be
nonrefundable.
3.06 INDEMNIFICATION: NATURE OF THE ISSUING LENDER'S DUTIES. (a)
The Borrowers agree to indemnify and save harmless the Agent, the Issuing
Lender and each Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees, which the Agent, the Issuing Lender or such
Lender may incur or be subject to as a consequence, direct or indirect, of
(i) the Issuance of any Letter of Credit or (ii) any action or proceeding
relating to a court order, injunction, or other process or decree restraining
or seeking to restrain the Issuing Lender from paying any amount under any
Letter of Credit.
(b) The obligations of the Borrowers hereunder with respect to
Letters of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms hereof under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit or Loan Document or any agreement or instrument relating thereto;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against the beneficiary, or any
transferee, of any Letter of Credit, or the Issuing Lender, any Lender, or
any other Person;
(iii) any draft, certificate, or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) any lack of validity, effectiveness, or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part;
(v) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or
of the proceeds thereof;
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(vi) any failure of the beneficiary of a Letter of Credit to
strictly comply with the conditions required in order to draw upon any
Letter of Credit;
(vii) any misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any other circumstance or happening whatsoever, whether
or not similar to the foregoing;
PROVIDED, THAT, notwithstanding the foregoing, the Issuing Lender shall not
be relieved of any liability it may otherwise have as a result of its gross
negligence or willful misconduct.
3.07 INCREASED COSTS. (a) CHANGE IN LAW. If any change after the
Closing Date in any law or regulation or in the interpretation thereof by any
court or administrative or governmental authority charged with the
administration thereof shall either (i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against letters of credit
issued by the Issuing Lender or (ii) impose on the Issuing Lender or any
Lender any other condition regarding letters of credit or, in the case of
such Lender, its participation hereunder in Letters of Credit, and the result
of any event referred to in the preceding clause (i) or (ii) shall be to
increase the out-of-pocket cost to the Issuing Lender of Issuing or
maintaining or, in the case of such Lender, having a participation in Letters
of Credit, then, upon demand by the Issuing Lender or such Lender (with a
copy to the Agent), the Borrower shall promptly (and in any event within five
Business Days) pay to the Issuing Lender or such Lender from time to time as
specified by such Issuing Lender or such Lender (with a copy to the Agent)
additional amounts which shall be sufficient to compensate the Issuing Lender
or such Lender for such increased cost. A certificate as to such increased
cost, and amount thereof, incurred by the Issuing Lender or any Lender as a
result of any event mentioned in clause (i) or (ii) above, shall be submitted
by the Issuing Lender or such Lender to the Borrower and the Agent, which
certificate shall set out in reasonable detail the calculation of such
amounts and be conclusive and binding for all purposes, absent manifest error.
(b) CAPITAL. If, at any time after the Closing Date, the Issuing
Lender or any Lender determines that compliance with any law or regulation as
adopted, amended or otherwise modified after the Closing Date or with any
written guideline or request from any central bank or other governmental
authority published after the Closing Date (a copy of which shall be sent by
the Issuing Lender or such Lender, as the case may be, to the
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Borrower), whether or not having the force of law, has or would have the
effect of reducing the rate of return on the capital of the Issuing Lender or
such Lender or any corporation controlling the Issuing Lender or such Lender
(whether by increasing the amount of capital required or expected to be
maintained by the Issuing Lender or such Lender or any corporation
controlling the Issuing Lender or such Lender or otherwise) as a consequence
of, or with reference to, such Issuing Lender's commitment to issue, the
issuance of, or, with respect to such Lender's commitment, to participate in,
any Letter of Credit hereunder below the rate that the Issuing Lender or such
Lender or such other corporation could have achieved but for compliance
therewith (taking into account the policies of the Issuing Lender, such
Lender or corporation with regard to capital), then the Borrower shall from
time to time, upon demand by the Issuing Lender or such Lender (with a copy
of such demand to the Agent), immediately pay to the Issuing Lender or such
Lender additional amounts sufficient to compensate the Issuing Lender or such
Lender or other corporation for such reduction. A certificate as to such
amounts shall be submitted to the Borrower and the Agent by the Issuing
Lender or such Lender, as the case may be, which certificate shall be
conclusive and binding for all purposes absent manifest error.
(c) SURVIVAL. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 3.07 shall survive the payment of all
Obligations.
3.08 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and Practice
for Documentary Credits as most recently published by the International
Chamber of Commerce shall in all respects be deemed a part of this Article
III as if incorporated herein and shall apply to the Letters of Credit.
ARTICLE IV
CONDITIONS OF EFFECTIVENESS
4.01 CONDITIONS TO INITIAL ADVANCES. The obligations of the Lenders
to, on and after the Closing Date, continue advances outstanding under the
Existing Credit Agreement as Advances hereunder, make the initial Advances
hereunder and receive through the Agent the initial Competitive Bid Request
and the initial Notice of Conversion/Continuation, and the obligation of the
Issuing Lender to, on and after the Closing Date, continue any letter of
credit outstanding under the Existing Credit Agreement as a Letter of Credit
hereunder and issue any Letter of Credit hereunder, are subject to the
following conditions precedent, each of which shall be satisfied prior to or
on the Closing Date:
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(a) The Agent shall have received all of the following in form
and substance reasonably satisfactory to the Agent and legal counsel for
the Agent (unless otherwise specified or unless the Agent otherwise
agrees):
(1) executed counterparts of this Agreement signed by
the Borrower, the Agent and at least the Majority Lenders,
sufficient in number for distribution to the Borrower, the Agent
and each Lender;
(2) with respect to each Guarantor: (i) if the
certificate of incorporation of any Guarantor that was a
guarantor under the Existing Credit Agreement has been amended
since the date last delivered to the Agent, a copy of such
certificate and the bylaws of such Guarantor as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary
of such Guarantor as of the Closing Date; (ii) with respect to
each other Guarantor, its certificate of incorporation and bylaws
as in effect on the Closing Date, certified by the secretary of
state of the state of its incorporation as of a recent date and
by the Secretary or Assistant Secretary of such Guarantor as of
the Closing Date; and (iii) a good standing certificate for each
Guarantor from the secretary of state of the state of its
incorporation;
(3) certified copies of (i) the resolutions of the
Board of Directors of the Borrower and each Guarantor approving
this Agreement and each other Loan Document to which it is or is
to be a party and the transactions contemplated hereby and
thereby, and (ii) all documents evidencing other necessary
corporate action and governmental approvals with respect to each
Loan Document and the transactions contemplated thereby;
(4) a certificate of the Secretary or an Assistant
Secretary of the Borrower and each Guarantor certifying the names
and true signatures of the officers of such Loan Party authorized
to sign each Loan Document to which it is or is to be a party and
the other documents to be delivered by it hereunder which
certificates may be conclusively relied on by the Agent until the
Agent shall receive a further certification of the
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Secretary or Assistant Secretary of such Loan Party cancelling
or amending the prior certificate of such Loan Party and
submitting the names and signatures of the officers named in
such further certificate;
(5) a certificate signed by a Senior Officer of the
Borrower, dated as of the Closing Date stating that: (i) the
representations and warranties contained in Article V are true
and correct on and as of the Closing Date; (ii) no Default or
Event of Default exists on the Closing Date; and (iii) there has
occurred since June 28, 1996, no event or circumstance that
constitutes a Material Adverse Effect;
(6) such other assurances, certificates, documents,
consents or opinions as the Agent may reasonably require.
(b) The Agent shall have received the fees described in
Section 2.03(a) and 2.03(b) due on the Closing Date;
(c) The reasonable allocated fees and expenses of Bank of
America's inhouse counsel invoiced to the Closing Date, relating to the
Loan Documents shall have been paid by Borrower;
(d) The representations and warranties contained in Article V
shall be true and correct in all material respects;
(e) No Default or Event of Default shall have occurred and be
continuing; and
(f) Each Lender shall have satisfactorily completed its due
diligence with respect to this Agreement.
4.02 CONDITIONS PRECEDENT TO ALL BORROWINGS AND ALL ISSUANCES. The
obligation of each Lender to make an Advance on the occasion of any
Borrowing, or any Bid Advance as to which the Borrower has accepted the
relevant Competitive Bid (including the initial Borrowing) and the obligation
of the Issuing Lender to issue any Letter of Credit (including the initial
Letter of Credit), shall be subject to the conditions precedent that on the
date of such Borrowing or Issuance (a) the following statements shall be true
and each of the giving of the applicable Notice of Borrowing, Competitive Bid
Request or the applicable request for Issuance (as the case may be) and the
acceptance by the Borrower
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of the proceeds of such Borrowing or the Issuance of such Letter of Credit
shall constitute a representation and warranty by the Borrower or such
Subsidiary Borrower that on the date of such Borrowing or Issuance, as the
case may be, such statements are true:
(i) each representation and warranty contained in Article V
hereof is true and correct in all material respects on and as of the date
of such Borrowing or Issuance, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom or to such
Issuance (as the case may be), as though made on and as of such date except
to the extent any such representation and warranty is made as of any other
date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom or
from such Issuance (as the case may be) which constitutes an Event of
Default or a Default;
(iii) no event or circumstance shall have occurred since the
Closing Date that constitutes a Material Adverse Effect; and
(iv) there shall not be then pending or, to the knowledge of any
Loan Party, threatened any action, suit, proceeding or investigation
against or affecting Borrower or any of its Subsidiaries or any property of
any of them that constitutes a Material Adverse Effect;
and (b) the Agent shall have received such other approvals or documents
relating to the validity or enforceability of any Loan Documents as any
Lender through the Agent may reasonably request.
4.03 CONDITIONS TO EFFECTIVENESS OF SUBSIDIARY BORROWER ELECTING TO
PARTICIPATE AFTER THE CLOSING DATE. It is a condition precedent to the
effectiveness of any election by a Subsidiary to become a Subsidiary Borrower
that each Lender receives the following:
(a) a duly executed and delivered Notice of Election to Participate;
(b) a Committed Advance Note duly executed by such Subsidiary
Borrower in favor of any Lender requesting a promissory note in a principal
amount equal to such Lender's Pro Rata Share of the Subsidiary Borrower
Sublimit;
(c) the documentation specified in Section 4.01(a)(5) and (6) with
respect to such Subsidiary Borrower; and
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(d) a favorable opinion of counsel in the jurisdiction in which
such Subsidiary Borrower is incorporated confirming, among other things, that
(i) such Subsidiary Borrower's obligations under this Agreement and its Notes
are legal, valid, binding and enforceable against such Subsidiary Borrower,
(ii) the execution, delivery and performance of the Loan Documents by such
Subsidiary Borrower will not violate any law, decree or judgment or violate
any material agreement to which such Subsidiary Borrower is a party or by
which its assets are bound and (iii) no government approvals, consents,
registrations or filings are required by the Subsidiary Borrower; PROVIDED
that such opinion shall be subject to such modifications as are acceptable to
the Agent in its sole discretion.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Lenders that:
5.01 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. The
Borrower and each of its Subsidiaries is a corporation, partnership or joint
venture duly organized and existing and in good standing under the laws of
its respective jurisdiction of organization. The Borrower and each of its
Subsidiaries is duly qualified and is in good standing, in each other
jurisdiction in which the conduct of its business or the ownership or leasing
of its properties makes such qualification necessary, except where the
failure so to qualify and to be in good standing would not constitute a
Material Adverse Effect. The Borrower and each of its Subsidiaries has the
requisite power and authority to conduct its business as now being conducted
and to own its property, and to execute and deliver each Loan Document to
which it is a party and to perform its Obligations. The Borrower and each of
its Subsidiaries is in compliance with all laws applicable to its business,
has obtained all authorizations, consents, approvals, orders, licenses and
permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from,
any Governmental Agency that are necessary for the transaction of its
business, except where the failure to do any of the foregoing would not
constitute a Material Adverse Effect.
5.02 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS.
The execution, delivery and performance by each
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Loan Party of the Loan Documents to which it is a party have been duly
authorized by all necessary action, and do not:
(a) require any consent or approval not heretofore obtained of
any partner, stockholder, security holder or creditor of any Loan Party;
(b) violate or conflict with any provision of any Loan Party's
articles or certificate of incorporation or bylaws or other equivalent
instruments, as applicable;
(c) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or leased by any Loan Party;
(d) violate any Requirement of Law applicable to such Loan
Party; or
(e) result in a breach of or default under, or would with the
giving of notice or the lapse of time or both constitute a breach of or
default under, or cause or permit the acceleration of any obligation owed
under any indenture or loan or credit agreement or any other Contractual
Obligation to which such Loan Party is a party or by which such Loan Party
or any of its material property is bound or affected;
and none of the Loan Parties is in violation of, or default under, any
Requirement of Law applicable to it or Contractual Obligation applicable to
it, or any indenture or credit agreement described in Section 5.02(e), in any
respect that in such case constitutes a Material Adverse Effect.
5.03 NO GOVERNMENTAL APPROVALS REQUIRED. No authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is required by any Loan Party to
authorize or permit under applicable laws the execution, delivery and
performance by such Loan Party of the Loan Documents.
5.04 SUBSIDIARIES OF BORROWER. All of the Subsidiaries of Borrower,
as of the date of this Agreement, are identified in Schedule 5.04 hereto.
The capital stock of each such Subsidiary identified in Schedule 5.04 is duly
authorized, validly issued, fully paid and nonassessable. Schedule 5.04
correctly sets forth the ownership interest as of the date hereof of Borrower
in each of its subsidiaries. Each active Domestic Subsidiary is party hereto
as a Guarantor.
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5.05 FINANCIAL STATEMENTS. Borrower has furnished to the Lenders
and the Agent the audited consolidated financial statements of Borrower and
its Subsidiaries as of June 28, 1996 and for the Fiscal Year then ended.
Such financial statements fairly present the financial position and results
of operations of Borrower and its Subsidiaries as of the dates and for the
periods indicated in accordance with Generally Accepted Accounting
Principles, consistently applied.
5.06 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of June
28, 1996, Borrower and its Subsidiaries do not have any liability or
contingent liability that is material to Borrower and its Subsidiaries, taken
as a whole, that is not reflected in, reserved for or against or otherwise
disclosed in the financial statements described in Section 5.05, other than
liabilities and contingent liabilities (x) that in accordance with Generally
Accepted Accounting Principles are not required to be reflected or disclosed
in such financial statements or (y) that are disclosed on any schedule to
this Agreement. As of the Closing Date, no event or circumstance has
occurred since June 28, 1996 that constitutes a Material Adverse Effect.
5.07 TITLE TO PROPERTY. Borrower and its Subsidiaries have good and
valid title to the property reflected in the financial statements described
in Section 5.05 (other than property subsequently sold or disposed of to the
extent permitted under this Agreement) free and clear of all Liens, other
than those permitted by Section 7.06.
5.08 INTANGIBLE ASSETS. Borrower and its Subsidiaries own, or
possess the right to use to the extent necessary in their respective
businesses, all trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets that are used or are
necessary in any material respect in the conduct of their businesses as now
operated. No such Intangible Asset, to the best knowledge of any Loan Party,
conflicts with the valid trademark, trade name, copyright, patent, patent
right or Intangible Asset of any other Person to the extent that such
conflict constitutes a Material Adverse Effect.
5.09 GOVERNMENTAL REGULATION. Neither Borrower nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, the
Investment Company Act of 1940 or, to the best knowledge of the Borrower, any
other law limiting or regulating its ability to incur the Obligations.
5.10 LITIGATION. Except for matters set forth in Schedule 5.10 or
otherwise disclosed pursuant to Section 6.01(i),
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there are no actions, suits, proceedings or investigations pending as to
which Borrower or its Subsidiaries have been served or have received notice
or, to the knowledge of the Borrower, threatened against or affecting
Borrower or its Subsidiaries or any property of any of them before any
Governmental Agency which, if determined adversely to Borrower or its
Subsidiaries, could reasonably be expected to constitute a Material Adverse
Effect.
5.11 BINDING OBLIGATIONS. Each of the Loan Documents to which each
Loan Party is a party will, when executed and delivered by such Loan Party,
constitute the legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws or equitable principles
relating to the granting of specific performance and other equitable remedies
as a matter of judicial discretion.
5.12 ERISA. Borrower and its Subsidiaries are in compliance in all
material respects with the applicable provisions of ERISA and the Code
relating to Plans except to the extent as would not have a Material Adverse
Effect. No Plan is a Multiemployer Plan. As of the date hereof, neither
Borrower nor any Subsidiary has, with respect to any Plan established or
maintained by it, engaged in a prohibited transaction which would subject it
to a tax or penalty on prohibited transactions imposed by ERISA or Section
4975 of the Code which tax or penalty would have or could reasonably be
expected to have a Material Adverse Effect. To the Borrower's knowledge, no
liability to the PBGC that is material is reasonably expected to be incurred
with respect to the Plans and there has been no Reportable Event and no other
event or condition that, in either case, presents a material risk of
termination of a Plan by the PBGC. Neither Borrower nor any of its
Subsidiaries has engaged in a transaction described in Section 4069 of ERISA
during the last five years which would result in the incurrence of a material
liability. No Accumulated Funding Deficiency, whether or not waived, exists
with respect to any of the Plans, determined as of the last day of the most
recently ended fiscal year of each Plan. Neither Borrower nor any of its
Subsidiaries has incurred any Withdrawal Liability with respect to any
Multiemployer Plan.
5.13 REGULATIONS G AND U. No part of the proceeds of any Advance
hereunder will be used to purchase or carry, or to extend credit to others
for the purpose of purchasing or carrying, any "margin stock" (as such term
is defined in Regulations G and U) in violation of Regulation G or U.
Neither Borrower 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 such "margin stock."
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5.14 DISCLOSURE. No written statement made by a Senior Officer of
any Loan Party to the Agent or the Lenders in connection with this Agreement,
or in connection with any Advance, contains any untrue statement of a
material fact or omits a material fact necessary in order to make the
statement made not misleading in light of all the circumstances existing at
the date the statement was made. There is no fact known to any Loan Party
which would constitute a Material Adverse Effect that has not been disclosed
in writing to the Lenders, other than general economic conditions.
5.15 TAX LIABILITY. Borrower and its Subsidiaries have filed all
material tax returns which are required to be filed, and have paid all taxes
due and payable by Borrower or its Subsidiaries with respect to the periods,
property or transactions covered by said returns, or pursuant to any
assessment received by Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been established and
maintained.
5.16 HAZARDOUS MATERIALS. To the extent that any Hazardous
Materials have been, or are, used, generated or stored by Borrower or any of
its Subsidiaries on any real property, or transported to or from such real
property by Borrower or its Subsidiaries, such use, generation, storage and
transportation have been, to the best knowledge of each Loan Party, and are
in compliance in all material respects with all Hazardous Materials Laws.
5.17 EMPLOYEE MATTERS. There is no strike, work stoppage or labor
dispute with any union or group of employees pending or, to the best
knowledge of each Loan Party, overtly threatened involving Borrower or any of
its Subsidiaries that would constitute a Material Adverse Effect.
5.18 PROJECTIONS. As of the Closing Date, to the best knowledge of
the Borrower the assumptions set forth in the Projections are reasonable and
consistent with each other and the Projections are reasonably based on such
assumptions. Nothing in this Section 5.18 shall be construed as a
representation, warranty or covenant that the Projections in fact will be
achieved.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of the
Commitment remains outstanding, Borrower shall, and shall cause each of its
Subsidiaries to, unless the Agent (with the approval of the Majority Lenders)
otherwise consents in writing:
6.01 FINANCIAL AND BUSINESS INFORMATION. Deliver to the Agent and
the Lenders at Borrower's sole expense:
(a) As soon as practicable, and in any event within 50 days
after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter
in any Fiscal Year), (i) the consolidated and consolidating balance sheets
of Borrower and its Subsidiaries as at the end of such Fiscal Quarter, and
(ii) consolidated and consolidating statements of income and cash flow, in
each case of Borrower and its Subsidiaries for such Fiscal Quarter and for
the portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail sufficient to calculate compliance with financial
covenants, and presented in a manner comparing such financial statements to
the financial statements for the comparable fiscal periods of the prior
Fiscal Year and to Borrower's budget for the current Fiscal Year. Such
financial statements shall be certified by a Senior Officer of Borrower as
fairly presenting the financial condition, results of operations and cash
flow of Borrower and its Subsidiaries in accordance with Generally Accepted
Accounting Principles (other than any requirement for footnote
disclosures), consistently applied (except for those changes to which the
independent public accountants of Borrower have concurred), as at such date
and for such periods, subject only to normal year-end audit adjustments;
(b) As soon as practicable, and in any event within 100 days
after the end of each Fiscal Year, (i) the consolidated and consolidating
balance sheets of Borrower and its Subsidiaries as at the end of such
Fiscal Year, and (ii) consolidated and consolidating statement of income
and statement of cash flow, in each case of Borrower and its Subsidiaries
for such Fiscal Year, all in reasonable detail sufficient to calculate
compliance with financial covenants, and presented in a manner comparing
such financial statements to the financial-statements for the comparable
fiscal periods of the prior Fiscal Year and to Borrower's budget for the
current Fiscal Year. Such financial
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statements shall be prepared in accordance with Generally Accepted
Accounting Principles, consistently applied (except for those changes to
which the independent public accountants of Borrower have concurred), and
such consolidated financial statements shall be accompanied by a report
and opinion of KPMG Peat Marwick or another of the six largest firms of
independent public accountants of recognized national standing, which
report and opinion shall be prepared in accordance with generally
accepted auditing standards as at such date, and shall not be subject to
any qualifications or exceptions as to the scope of the audit nor to any
other qualification, exception or explanation which the Majority Lenders
determine reflects a Material Adverse Effect;
(c) Not later than 120 days after the commencement of each Fiscal
Year, (i) the Borrower's business plan for such Fiscal Year, (ii)
projected consolidated financial statements showing the financial
condition and results of operation, by Fiscal Quarter, of Borrower and
its Subsidiaries for such Fiscal Year, including pro forma compliance (or
non-compliance, as the case may be) with the financial covenants set
forth in this Agreement, and (iii) projected consolidated financial
statements showing such financial condition and results of operation by
Fiscal Year for the next five succeeding Fiscal Years, in reasonable
detail and in a form reasonably satisfactory to the Agent, together with
a description of the material assumptions used in preparing such
projected financial statements and, as promptly as practicable after any
revision thereof is approved by the chief financial officer of Borrower,
a copy of such revision;
(d) Promptly after receipt thereof, Borrower will make available
for inspection copies of any detailed audit reports or recommendations
submitted to Borrower or any of its Subsidiaries by independent
accountants in connection with the accounts or books of Borrower or any
of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within
10 days after the sending or filing thereof, copies of each annual
report, proxy or financial statement or other report or communication
sent to the shareholders of Borrower and copies of all annual, regular,
periodic and special reports and registration statements, in each case
which Borrower may file or be required to file with the SEC under the
Securities Act of 1933 or the Securities Exchange Act of 1934;
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(f) Promptly after request by the Agent or any Lender, copies of
any other specific report or other document that was filed by Borrower or
any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower obtaining actual
knowledge, and in any event within ten (10) Business Days after he obtains
actual knowledge, of the occurrence of any (i) Reportable Event, or (ii) a
material non-exempt "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) in connection with any
Pension Plan, other than a Multiemployer Plan, or any trust created
thereunder, a written notice specifying the nature thereof, what action
Borrower and any of its Subsidiaries is taking or proposes to take with
respect thereto, and, when known, any action taken by the Internal Revenue
Service with respect thereto;
(h) Promptly after the Borrower or any Subsidiary Borrower
obtains actual knowledge of the existence of any condition or event which
constitutes a Default, written notice specifying the nature and period of
existence thereof and specifying what action Borrower or any of its
Subsidiaries are taking or propose to take with respect thereto;
(i) Promptly after the Borrower or any Subsidiary Borrower
obtains actual knowledge that (i) any Person has commenced a legal
proceeding with respect to a claim against Borrower or any of its
Subsidiaries which alleges liability equal to or greater than $1,000,000
and which is not covered by insurance (subject to standard deductibles),
(ii) any creditor or lessor under a written credit agreement with respect
to Indebtedness or a material lease has asserted in writing a material
default thereunder on the part of Borrower or any of its Subsidiaries,
(iii) any other event or circumstance occurs or exists that would
constitute a Material Adverse Effect, in each case a written notice
describing the pertinent facts relating thereto and what action Borrower or
any of its Subsidiaries are taking or propose to take with respect thereto;
(j) Such other data and information relating to the performance
of the Obligations or the business, condition or affairs of Borrower and
its Subsidiaries as from time to time may be reasonably requested by the
Agent or any Lender;
(k) Promptly after entering into any letter of intent and/or
definitive contract with respect to any
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proposed Acquisition, notify the Agent and, if the Borrower
desires, each Lender directly of such fact; and
(l) Concurrently with delivery of the financial statements
referred to in Sections 6.01(a) and 6.01(b), deliver a Compliance
Certificate dated as of the last day of the Fiscal Quarter or Fiscal Year,
as the case may be.
6.02 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and discharge
promptly all material taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective property or any part thereof
and upon their respective income or profits or any part thereof except that
Borrower and its Subsidiaries shall not be required to pay or cause to be
paid any tax, assessment, charge or levy that is not yet past due, or is
being contested in good faith by appropriate proceedings, so long as Borrower
or its Subsidiaries has established and maintains adequate reserves for the
payment of the same and by reason of such nonpayment and contest no material
item or portion of property of Borrower and its Subsidiaries, taken as a
whole, is in jeopardy of being seized, levied upon or forfeited prior to
judgment.
6.03 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the respective jurisdictions of their formation and
all authorizations, rights, franchises, privileges, consents, approvals,
orders, licenses, permits, or registrations from any Governmental Agency that
are necessary for the transaction of their respective businesses, except
where the failure to so preserve and maintain would not constitute a Material
Adverse Effect; and qualify and remain qualified as a foreign corporation in
each jurisdiction in which such qualification is necessary in view of their
respective businesses or the ownership of their respective properties, except
(a) where the failure to so qualify and remain qualified would not constitute
a Material Adverse Effect and (b) that a merger permitted under Section 7.02
shall not constitute a violation of this covenant.
6.04 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all
of their respective depreciable properties necessary to their operations in
good order and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of their respective material properties,
except that the failure to maintain, preserve and protect a particular item
of depreciable property that is not of significant value, either
intrinsically or to the operations of Borrower and its Subsidiaries, taken as
a whole, shall not constitute a violation of this covenant.
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6.05 MAINTENANCE OF INSURANCE. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrower and its Subsidiaries
operate.
6.06 COMPLIANCE WITH LAWS. Comply with all Requirements of Law
noncompliance with which would constitute a Material Adverse Effect, except
that Borrower and its Subsidiaries need not comply with a Requirement of Law
then being contested by any of them in good faith by appropriate proceedings.
6.07 INSPECTION RIGHTS. Upon reasonable notice, at any mutually
agreeable times during regular business hours (but not so as to materially
interfere with the business of Borrower and its Subsidiaries), permit the
Agent or any Lender, or any authorized employee, agent or representative
thereof reasonably acceptable to Borrower, to examine, audit and make copies
and abstracts from the records and books of account of, and to visit and
inspect the properties of, Borrower and its Subsidiaries and to discuss the
affairs, finances and accounts of Borrower and its Subsidiaries with any of
their respective officers, key employees, accountants, customers and vendors.
6.08 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Make and keep books,
records and accounts which reflect in reasonable detail all transactions as
necessary to permit preparation of financial statements in conformity with
Generally Accepted Accounting Principles.
6.09 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with
all Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, whether such
material agreements, indentures, leases or instruments are with the Lenders
or another Person, where the failure to so comply would constitute a Material
Adverse Effect.
6.10 HAZARDOUS MATERIALS LAWS. Keep and maintain the real property
owned or leased by it and each portion thereof in compliance in all material
respects with all Hazardous Materials Laws; promptly advise the Agent in
writing of (a) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened in
writing pursuant to any applicable Hazardous Materials Laws, (b) any and all
claims made or threatened in writing by any third party against Borrower or
any Guarantor or any such real property relating to
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damage, contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Materials and (c) discovery by any Senior Officer of any
Loan Party of any occurrence or condition on any such real property that
could reasonably be expected to cause any such real property or any part
thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of the real property under any Hazardous Materials
Laws.
6.11 ADDITIONAL GUARANTORS AFTER THE CLOSING DATE. If the Borrower
or any Subsidiary of Borrower creates or otherwise acquires any active
Domestic Subsidiary at any time after the Closing Date, the Borrower shall
cause such Domestic Subsidiary to become a Guarantor hereunder by delivering
to the Agent:
(a) an instrument referring to this Agreement wherein such
Guarantor agrees to be bound by all the terms and conditions applicable to
a Guarantor under this Agreement as of the date thereof;
(b) the documentation specified in Section 4.01(a)(5) and (6)
with respect to such Guarantor; and
(c) with respect to any such Guarantor whose total assets
constitute at least 10% of Consolidated Total Assets at the time it becomes
a Guarantor, a favorable opinion of counsel in the jurisdiction in which
such Guarantor is incorporated confirming, among other things, that (i)
such Subsidiary's obligations under this Agreement are legal, valid,
binding and enforceable against such Subsidiary, (ii) the execution,
delivery and performance of the Loan Documents by such Subsidiary will not
violate any law, decree or judgment or violate any material agreement to
which such Subsidiary is a party or by which its assets are bound and (iii)
no government approvals, consents, registrations or filings are required by
the Subsidiary; PROVIDED that such opinion shall be subject to such
modifications as are acceptable to the Agent in its sole discretion.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding or any other Obligation remains unpaid, or any portion of the Total
Commitment remains outstanding, Borrower shall not, and shall cause each of its
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Subsidiaries to not, unless the Agent (with the approval of the Majority
Lenders) otherwise consents in writing:
7.01 DISPOSITION OF PROPERTY. Make any Disposition, whether now
owned or hereafter acquired, other than:
(a) Dispositions of inventory, machinery and equipment in
the ordinary course of business;
(b) Dispositions of assets, the aggregate net book value of
which does not exceed in the aggregate for the Borrower and all
Subsidiaries (a) $10,000,000 during Fiscal Year 1997 and (b)
$15,000,000 during any Fiscal Year thereafter;
(c) Dispositions in connection with a Permitted Accounts
Receivable Financing;
(d) Transfers of accounts receivable from Sunrise Medical
CCG, Inc. and Sunrise Medical HHG, Inc. to SunMed Finance, Inc.;
(e) Dispositions in connection with sale and leaseback
transactions permitted by Section 7.06(e); and
(f) Dispositions of assets by Guarantors to other
Guarantors, and Dispositions of assets by Foreign Subsidiaries to
other Foreign Subsidiaries, provided that if either of such Foreign
Subsidiaries is a Subsidiary Borrower, the surviving entity will
assume all such Subsidiary Borrower obligations hereunder.
7.02 MERGERS. Merge, consolidate or amalgamate with or into any
Person, provided that (i) any Subsidiary of Borrower may be merged with and
into Borrower (with Borrower as the surviving entity), (ii) any Domestic
Subsidiary may be merged with and into another Domestic Subsidiary, so long
as, if either of such Subsidiaries was a Guarantor, the surviving entity is a
Guarantor, (iii) any Foreign Subsidiary may be merged with another Foreign
Subsidiary, provided that if either of such Subsidiaries is a Subsidiary
Borrower, the surviving entity will assume all such Subsidiary Borrower
obligations hereunder and (iv) a Subsidiary may be merged with any other
Person to the extent such merger is consummated to effect (x) a Disposition
permitted pursuant to Section 7.01(b) or (y) an Acquisition permitted
pursuant to Section 7.03.
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7.03 INVESTMENTS AND ACQUISITIONS. Make any Acquisition or enter
into any agreement to make any Acquisition, or make or suffer to exist any
Investment, except:
(a) Investments existing on the Closing Date and disclosed in
Schedule 7.03(a);
(b) Investments consisting of Cash Equivalents;
(c) Investments in Persons which immediately before and after
giving effect to such Investment are Wholly-Owned Domestic Subsidiaries
which have become Guarantors hereunder;
(d) Investments in Subsidiaries in which the Borrower has at
least an 80% ownership interest, PROVIDED that (i) if such Subsidiary is a
partnership or a joint venture (A) the partner or joint venture entity in
such Subsidiary shall be a Wholly-Owned Subsidiary of the Borrower, and (B)
the Investment by the Borrower in such Wholly-Owned Subsidiary which is the
partner or joint venture entity shall not exceed the amount being invested
in the partnership or joint venture, and (ii) if such Subsidiary is an
active Domestic Subsidiary, such Subsidiary shall have become a Guarantor
hereunder and each holder of a minority ownership interest in such
Subsidiary shall have executed a consent to the Guaranty; and
(e) Additional Permitted Acquisitions, where the purchase price paid
for, and the Indebtedness assumed in, all such Permitted Acquisitions do
not exceed (i) $10,000,000 for any single Permitted Acquisition or group of
related Permitted Acquisitions or (ii) $20,000,000 in the aggregate for all
Permitted Acquisitions in any Fiscal Year.
7.04 HOSTILE TENDER OFFERS. Make any tender offer to purchase or
acquire any outstanding capital stock of any corporation or other business
entity without the prior approval of the board of directors of that
corporation or business entity.
7.05 ERISA.
(a) At any time, permit any Pension Plan maintained by it or by
any ERISA Affiliate, to:
(i) engage in any non-exempt "prohibited transaction," as
such term is defined in Section 4975 of the Code, that would subject
any Loan Party to a liability that may reasonably be expected to
constitute a Material Adverse Effect;
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(ii) incur any material Accumulated Funding Deficiency; or
(iii) suffer a Termination Event to occur which may
reasonably be expected to result in liability of any Loan Party or any
ERISA Affiliate thereof to the Pension Plan or to the PBGC or the
imposition of a Lien on the property of any Loan Party or any ERISA
Affiliate thereof pursuant to Section 4068 of ERISA and such liability
or Lien may reasonably be expected to constitute a Material Adverse
Effect.
(b) Fail, upon a Senior Officer of Borrower becoming aware
thereof, promptly to notify the Agent of the occurrence of any Reportable
Event, or of any material nonexempt "prohibited transaction" (as defined in
Section 4975 of the Code) with respect to any Pension Plan maintained by it
or any trust created thereunder.
(c) At any time, permit any Pension Plan (other than a
Multiemployer Plan) maintained by it to fail to comply with ERISA or other
applicable Laws in any respect that constitutes a Material Adverse Effect.
7.06 LIENS; NEGATIVE PLEDGES; SALES AND LEASEBACKS. Create, incur,
assume or suffer to exist any Lien of any nature upon or with respect to any
of their respective properties, whether now owned or hereafter acquired; or
suffer to exist any Negative Pledge; or engage in any sale and leaseback
transaction with respect to its property; except:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges in favor of the Lenders;
(c) Liens in connection with a Permitted Accounts Receivable
Financing;
(d) Liens on property acquired pursuant to Acquisitions
permitted hereunder, provided such Liens were not incurred in contemplation
of such Acquisition;
(e) Sale and leaseback transactions which, together with
operating leases permitted by Section 7.17(b), do not exceed in the
aggregate $10,000,000 in aggregate payment obligations in any Fiscal Year,
and Liens and Negative Pledges solely on assets and the proceeds thereof
the subject of such transactions, provided that the Advances are prepaid in
an amount equal to the net Cash proceeds received
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from such transactions, concurrently upon the receipt thereof, in accordance
with Section 2.11(c);
(f) Negative Pledges in favor of lenders providing financing
permitted under Section 7.07(f) PROVIDED that (i) the Advances are prepaid
in an amount equal to the net proceeds from such financing concurrently
upon receipt thereof by the Borrowers or any of their Subsidiaries in
accordance with Section 2.11(c), and (ii) the Total Commitment is reduced
by an amount equal to such net proceeds (whether or not the Total
Commitment is fully utilized at such time); PROVIDED, FURTHER, that if any
such required prepayment is postponed in accordance with the proviso to
Section 2.11(c), the reduction in Total Commitment set forth in this
subsection shall also be correspondingly postponed; PROVIDED, FURTHER, that
any such reduction in the Total Commitment shall not be in lieu of the
reductions in the Total Commitment scheduled to occur on the immediately
following Amortization Dates; the Total Commitment shall continue to
automatically reduce on each scheduled Amortization Date by an amount equal
to the Amortization Amount pursuant to Section 2.10(b);
(g) Liens in connection with transfers of accounts receivable
permitted by Section 7.01(d);
(h) Liens and Negative Pledges solely on assets leased in
connection with leases permitted by Section 7.17;
(i) Negative Pledge solely on assets of Sunrise Medical Ltd. and
its Subsidiaries in connection with its European Coal and Steel Community
financing; and
(j) Other Liens and Negative Pledges solely on assets securing
Indebtedness or incurred in connection with sale and leaseback transactions
permitted by Section 7.06(e) where the obligations secured do not exceed
10% of Shareholders' Equity in the aggregate at any time.
7.07 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness except:
(a) Indebtedness under Swap Agreements incurred in the ordinary
course of business;
(b) Subordinated Debt of the Borrower or a Subsidiary incurred
in connection with permitted Acquisitions; PROVIDED that Majority Lenders
shall have approved the subordination provisions of any such Subordinated
Debt in excess of $5,000,000;
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(c) Indebtedness in respect of contracts to exchange, settle or
otherwise hedge foreign currency exposure incurred in the ordinary course
of business;
(d) Indebtedness in respect of a Permitted Accounts Receivable
Financing;
(e) Indebtedness in connection with transfers of accounts
receivable permitted by Section 7.01(d); and
(f) Consolidated Funded Indebtedness, the creation, incurrence,
assumption or existence of which would not cause the Leverage Ratio to
exceed the maximum Leverage Ratio permitted under Section 7.09 after giving
effect to such Indebtedness on a pro forma basis as of the date of the most
recently delivered Compliance Certificate; PROVIDED, HOWEVER, that any
unsecured Indebtedness of any Foreign Subsidiary shall not exceed, together
with the face amount of any letters of credit issued on behalf of such
Foreign Subsidiary (other than Letters of Credit), $15,000,000 for any one
Foreign Subsidiary; PROVIDED, FURTHER, that all unsecured Indebtedness for
all Foreign Subsidiaries, together with the face amount of all letters of
credit issued on behalf of any Foreign Subsidiary (other than Letters of
Credit), shall not exceed $45,000,000 in the aggregate at any one time
outstanding.
7.08 CONDUCT OF BUSINESS. Engage in any business OTHER THAN
businesses of the same nature as that which the Borrower and its Subsidiaries
conduct as of the Closing Date; provided, however, notwithstanding any other
provision of this Agreement, Borrower and its Subsidiaries may enter into
foreign exchange and commodity hedging agreements so long as such arrangements
are not for speculative purposes.
7.09 LEVERAGE RATIO. Permit the Leverage Ratio, as of the end of any
Fiscal Quarter, to exceed the following ratio:
Fiscal Quarters Ending Maximum Ratio
------------------------------ -------------
9/26/97 through 6/30/98 3.75 to 1.00
9/30/98 through 3/31/99 3.50 to 1.00
Thereafter 3.25 to 1.00
7.10 MINIMUM CONSOLIDATED TANGIBLE NET WORTH. Permit at the end of
any Fiscal Quarter Consolidated Tangible Net Worth to be less than (a)
-$16,000,000 PLUS (b) 50% of Consolidated Net Income for each Fiscal Quarter
ending after June 28, 1996 (not to be reduced by any losses incurred) PLUS (c)
50% of the net proceeds from the issuance of any equity securities of the
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Borrower after June 28, 1996 LESS (d) 50% of the Adjusted Dollar Equivalent
of Intangible Assets related to Acquisitions completed after December 27,
1996.
7.11 INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio, as
of the end of any Fiscal Quarter, to be less than the following ratio:
Fiscal Quarters Ending Minimum Ratio
----------------------------- -------------
9/26/97 through 3/31/99 1.40 to 1.00
6/30/99 1.50 to 1.00
Thereafter 1.75 to 1.00
7.12 CONTINGENT OBLIGATIONS. Create or become or be liable with
respect to any Contingent Obligations except:
(a) Contingent Obligations of the Borrower or any Subsidiary
supporting obligations of the Borrower or a Subsidiary entered into in the
ordinary course of Business;
(b) Guaranties by the Borrower of operating leases and
performance bonds of any Subsidiary of the Borrower; PROVIDED, that such
guaranties with respect to Foreign Subsidiaries shall not exceed
$12,000,000 in the aggregate outstanding at any one time; PROVIDED,
FURTHER, that, for purposes of calculating the amount of a guaranty of an
operating lease, such guaranty shall be deemed to be a guaranty of the next
12 months rent due under the operating lease so guarantied;
(c) Guaranties by the Borrower of any obligation of any of its
Subsidiaries permitted under Section 7.07(a), (b), (c) or (f);
(d) Guaranties by any of Borrower's Subsidiaries of any
Indebtedness of Borrowers permitted under Section 7.07(f) PROVIDED that (i)
the Advances are prepaid in an amount equal to the net proceeds from such
Indebtedness concurrently upon receipt thereof by the Borrowers or any of
their Subsidiaries in accordance with Section 2.11(c), and (ii) the Total
Commitment is reduced by an amount equal to such net proceeds (whether or
not the Total Commitment is fully utilized at such time); PROVIDED,
FURTHER, that if any such required prepayment is postponed in accordance
with the proviso to Section 2.11(c), the reduction in Total Commitment set
forth in this subsection shall also be correspondingly postponed; PROVIDED,
FURTHER, that any such reduction in the Total Commitment shall not be in
lieu of the reductions in the Total Commitment scheduled to occur on
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the immediately following Amortization Dates; the Total Commitment shall
continue to automatically reduce on each scheduled Amortization Date by an
amount equal to the Amortization Amount pursuant to Section 2.10(b);
(e) Guaranties by the Borrower, which are Subordinated Debt of
the Borrower, of any obligation of any of its Subsidiaries permitted under
Section 7.07(b);
(f) Other Contingent Obligations not incurred in the ordinary
course of business; PROVIDED that the maximum aggregate liability of the
Borrower and its Subsidiaries in respect of all such Contingent Obligations
shall at no time exceed $10,000,000 outstanding; and
(g) Contingent Obligations in favor of the Lenders under this
Agreement and the Letters of Credit issued hereunder.
7.13 LIMITATIONS ON RESTRICTIONS AFFECTING DIVIDENDS AND OTHER
PAYMENTS BY SUBSIDIARIES. Create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
of Borrower to (a) pay dividends or make any other distributions on its capital
stock or any other interest or participation in, or measured by, its profits, or
pay any Indebtedness owed to Borrower or any of its Subsidiaries or (b) make
loans or advances to Borrower or any of its Subsidiaries, except, in each case,
for such encumbrances or restrictions, if any, imposed by law or by this
Agreement, or (c) amend the terms of this Agreement.
7.14 RESTRICTED JUNIOR PAYMENTS. Make any Restricted Junior Payment
except:
(a) Restricted Junior Payments that in the aggregate do not
exceed, during any 12-month period, an amount equal to the lesser of (i)
10% of Shareholders' Equity calculated as of the end of the most recently
ended Fiscal Quarter and (ii) 50% of Consolidated Net Income during such
period; PROVIDED, HOWEVER, that after giving effect to such Restricted
Junior Payment (a) the Leverage Ratio, calculated as of the end of the most
recently ended Fiscal Quarter (adjusted to give effect to such Restricted
Junior Payment) shall be less than 3.25 to 1.00, and (b) no Default or
Event of Default shall exist.
(b) Restricted Junior Payments of the type described in clauses (i),
(ii) or (iv) of the definition of Restricted Junior Payments which are made
by a Subsidiary of the
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Borrower with respect to shares of any class of stock or other
ownership interest owned by the Borrower; and
(c) Purchases and redemptions from the Borrower's shareholders of any
warrants, options or other rights to acquire shares of the Borrower's stock
granted to shareholders pursuant to a shareholders' rights plan; PROVIDED
that (i) the repurchase and redemption provisions of such shareholders'
rights plan shall be in form and substance satisfactory to the Lenders in
their absolute discretion, and (ii) the aggregate amount of Restricted
Junior Payments made pursuant to this clause (c) shall not exceed $200,000
during the period beginning on the Closing Date and ending on the Final
Maturity Date.
7.15 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrower other than (i) transactions between
or among Borrower and its Wholly-Owned Subsidiaries or between or among its
Wholly-Owned Subsidiaries and (ii) transactions on terms at least as
favorable to Borrower or its Subsidiaries as would be the case in any
arm's-length transaction between unrelated parties of equal knowledge
respecting the subject matter thereof and equal bargaining power.
7.16 SUBSIDIARIES. Create, acquire or permit to exist any
Subsidiary less than 80% of the ownership interest of which is legally and
beneficially owned, directly or indirectly, by the Borrower.
7.17 LEASE OBLIGATIONS. Create or suffer to exist any obligations
for the payment of rent for any property under any lease or agreement to
lease, except for:
(a) leases of the Borrower and of Subsidiaries in existence on
June 27, 1996 and any renewal, replacement, extension or refinancing
thereof;
(b) additional operating leases entered into by the Borrower or
any Subsidiary after June 27, 1996 in the ordinary course of business
which, together with sale and leaseback transactions permitted by
Section 7.06(e), do not exceed in the aggregate $10,000,000 in
aggregate payment obligations in any Fiscal Year, and Liens in
connection therewith;
(c) leases entered into by the Borrower or any Subsidiary after
June 27, 1996 pursuant to sale-leaseback transactions permitted under
Section 7.06(e); and
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(d) Capital Leases permitted under Section 7.07.
ARTICLE VIII
GUARANTY
8.01 GUARANTY.
(a) Each Guarantor, jointly and severally, unconditionally and
irrevocably guaranties the due and punctual payment and performance of the
Obligations (including in each case interest accruing on and after the
filing of any petition in bankruptcy or of reorganization of the obligor
whether or not post filing interest is allowed in such proceeding). Each
Guarantor further agrees that the Obligations may be extended or renewed,
in whole or in part, without notice or further assent from it (except as
may be otherwise required herein), and it will remain bound upon this
guaranty notwithstanding any extension or renewal of any Obligation.
(b) Each Guarantor waives presentation to, demand for payment
from and protest to, as the case may be, the Borrower or any Subsidiary
Borrower or any other guarantor, and also waives notice of protest for
nonpayment. The obligations of each Guarantor hereunder shall not be
affected by (i) the failure of the Agent or the Lenders to assert any claim
or demand or to enforce any right or remedy against the Borrower or any
Subsidiary Borrower or any other guarantor under the provisions of this
Agreement or any other agreement or otherwise; (ii) any extension or
renewal of any provision hereof or thereof; (iii) the failure of the Agent
to obtain the consent of the Guarantors with respect to any rescission,
waiver, compromise, acceleration, amendment or modification of any of the
terms or provisions of this Agreement, the Notes or of any other agreement;
(iv) the release, exchange, waiver or foreclosure of any security held by
the Agent or the Lenders for the Obligations or any of them; (v) the
failure of the Agent to exercise any right or remedy against any other
guarantor of the Obligations; (vi) the release or substitution of any
guarantor; (vii) any defense based upon an election of remedies (including,
if available, an election to proceed by non-judicial foreclosure) by the
Agent or a Lender which destroys or otherwise impairs the subrogation
rights of any Guarantor or the right of any Guarantor to proceed against
the Borrower or any Subsidiary Borrower for reimbursement, or both; or
(viii) any rights or defenses created by the anti-deficiency statutes of
the State of California. Without limiting the
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generality of the foregoing or any other provision hereof, any Guarantor
hereby expressly waives any and all benefits which might otherwise be
available to it under California Civil Code Sections 2809, 2910, 2819,
2839, 2845, 2849, 2850, 2899 and 3433 and California Code of Civil
Procedure Sections 580a, 580b, 580d and 726.
(c) Each Guarantor further agrees that this guaranty constitutes
a guaranty of performance and of payment when due and not just of
collection, and waives any right to require that any resort be had by the
Agent or the Lenders to any security held for payment of the Obligations or
to any balance of any deposit, account or credit on the books of the Agent
in favor of the Borrower, any Subsidiary Borrower, any other guarantor or
to any other Person.
(d) Each Guarantor hereby expressly assumes all responsibilities
to remain informed of the financial condition of the Borrower or each
Subsidiary Borrower, as the case may be, and any circumstances affecting
the ability of the Borrower or any Subsidiary Borrower to perform under
this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations, the
Notes or any other instrument evidencing any Obligations, or by the
existence, validity, enforceability, perfection, or extent of any
collateral therefor or by any other circumstance relating to the
Obligations which might otherwise constitute a defense to these Guaranties.
The Agent makes no representation or warranty in respect to any such
circumstances and has no duty or responsibility whatsoever to the
Guarantors in respect to the management and maintenance of the Obligations
or any collateral security for the Obligations.
8.02 NO IMPAIRMENT OF GUARANTIES.
The obligations of the Guarantors hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or set-off, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality of
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Guarantors hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Agent
or the Lenders to assert any claim or demand or to enforce any remedy under this
Agreement or any other agreement, by any waiver or modification
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of any provision thereof, by any default, failure or modification of any
provision thereof, by any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act or thing or omission
or delay to do any other act or thing which may or might in any manner or to
any extent vary the risk of the Guarantors or would otherwise operate as a
discharge of the Guarantors as a matter of law, unless and until the
Obligations are paid in full.
8.03 CONTINUATION AND REINSTATEMENT, ETC.
(a) Each Guarantor further agrees that its guaranty hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation
is rescinded or must otherwise be restored by the Agent or the Lenders upon
the bankruptcy or reorganization of the Borrower, any of the Subsidiary
Borrowers or the Guarantors, or otherwise. In furtherance of the provisions
of this Article VIII, and not in limitation of any other right which the
Agent or the Lenders may have at law or in equity against the Borrower, any
Subsidiary Borrower or any Guarantor by virtue hereof, upon failure of the
Borrower or any Subsidiary Borrower to pay any Obligation when and as the
same becomes due, whether at maturity, by acceleration, after notice or
otherwise, each Guarantor hereby promises to and will, upon receipt of
written demand by the Agent on behalf of the Lenders, forthwith pay or cause
to be paid to the Agent on behalf of the Lenders in cash an amount equal to
the unpaid amount of all the Obligations in each case with interest thereon
at a rate of interest equal to the rate specified in Article II hereof, and
thereupon the Agent and the Lenders shall assign such Obligation, together
with all security interests, if any, then held by the Agent or the Lenders in
respect of such Obligation, to the Guarantors making such payment.
(b) Upon payment by any Guarantor of any sums to the Agent for the
benefit of the Lenders hereunder, all rights of such Guarantor against the
Borrower or any Subsidiary Borrower, as the case may be, arising as a result
thereof by way of right of subrogation or otherwise, shall in all respects be
subordinate and junior in right of payment to the prior final and
indefeasible payment in full of all Obligations to the Agent of the Lenders.
If any amount shall be paid to such Guarantor for the account of the
Borrower's or any Subsidiary Borrower's Obligations hereunder, such amount
shall be held in trust for the benefit of the Agent and shall forthwith be
paid to the Agent on behalf of the Lenders to be credited and applied to the
Obligations, whether matured or unmatured.
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8.04 GUARANTIED AMOUNT.
(a) Notwithstanding any other provision of this Article VIII, the
amount guarantied by each Guarantor hereunder shall be limited to the extent,
if any, required so that its obligations under this Article VIII shall not be
subject to avoidance under Section 548 of the Bankruptcy Code or to being set
aside or annulled under any applicable state law relating to fraud on
creditors. In determining the limitations, if any, on the amount of any
Guarantor's obligations hereunder pursuant to the preceding sentence, any
rights of subrogation or contribution which such Guarantor may have under
this Article VIII or applicable law shall be taken into account.
(b) Notwithstanding any provision in this Agreement to the
contrary, each Loan Party agrees that any Intercompany Indebtedness of any
Guarantor shall be subordinated in right of payment to the Obligations of
such Guarantor under this Guaranty and the other Loan Documents to the
Lenders.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
UPON EVENTS OF DEFAULT
9.01 EVENTS OF DEFAULT. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstance whatsoever, shall constitute an Event of Default:
(a) any Loan Party fails to pay any principal on any Obligation
or any principal or interest on any Bid Advance on the date when due; or
(b) any Loan Party fails to pay any interest or premium on any
Obligation or any fees due to the Agent or the Lenders within five days
after the date when due or fails to pay any other fee or amount payable to
the Agent or the Lenders under any Loan Document, or any portion thereof,
within five days after demand therefor; or
(c) any Loan Party fails to perform or observe any of the
covenants contained in Section 6.01(h), 6.03 or 6.06 or in Article VII; or
(d) any Loan Party fails to perform or observe any of the
covenants contained in Sections 6.01(a)-(c) within 5 days after the giving
of written notice by the Agent of such Default; or
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(e) any Loan Party fails to perform or observe any other
covenant or agreement contained in any Loan Document on its part to be
performed or observed within 30 days after the giving of written notice by
the Agent of such Default; or
(f) any representation or warranty of any Loan Party made in any
Loan Document or in any certificate delivered pursuant to any Loan Document
proves to have been incorrect when made or reaffirmed in any respect that
is materially adverse to the interests of the Lenders; or
(g) Borrower or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness for borrowed money in an amount exceeding $1,000,000, or any
guaranty of present or future Indebtedness for borrowed money in an amount
exceeding $1,000,000, on its part to be paid, when due (or within any
stated grace period), whether at the stated maturity, upon acceleration, by
reason of required prepayment or otherwise or (ii) fails to perform or
observe any other term, covenant, or agreement on its part to be performed
or observed, or suffers any event to occur in connection with any present
or future Indebtedness for borrowed money in an amount exceeding
$1,000,000, or of any guaranty of present or future Indebtedness for
borrowed money in an amount exceeding $1,000,000, if as a result of such
failure or sufferance any holder or holders thereof (or an agent or trustee
on its or their behalf) has the right to declare such Indebtedness due
before the date on which it otherwise would become due unless any such
failure or sufferance is waived by such holders thereof (or an agent or
trustee on its or their behalf); or
(h) any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of the Lenders or
satisfaction in full of the Obligations, ceases to be in full force and
effect or is declared by a court of competent jurisdiction to be null and
void, invalid, or unenforceable in any respect which, in the opinion of the
Majority Lenders is materially adverse to their interest; or any Loan Party
thereto denies that it has any or further liability or obligation under any
Loan Document or purports to revoke, terminate or rescind same; or
(i) a judgment against any Loan Party is entered by a court of
competent jurisdiction for the payment of money in excess of $500,000 and
absent procurement of a stay of execution, such judgment remains unbonded
or unsatisfied
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for 30 calendar days after the date of entry of judgment or such longer
period as may be permitted by law or otherwise binding on the judgment
creditor before execution on such judgment is allowed, or in any event
later than five days prior to the date of any proposed sale thereunder; or
(j) any Loan Party institutes or consents to any proceeding
under a Debtor Relief Law relating to it or to all or any material part of
its property, or is unable or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of creditors
or applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, or similar officer for
it or for all or any part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, or similar officer is
appointed without the application or consent of that Person and the
appointment continues undischarged or unstayed for 30 calendar days or any
proceeding under any Debtor Relief Law relating to any such Person or to
all or any material part of its property is instituted without the consent
of that Person and continues undismissed or unstayed for 30 calendar days
or results in the entry of an order for relief; or any judgment, writ,
warrant of attachment or execution, or similar process is issued or levied
against all or any material part of the property of any such Person and is
not released, vacated, or fully bonded within 30 calendar days after its
issue or levy; or
(k) the occurrence of a Termination Event with respect to any
Pension Plan if the aggregate liability of Borrower and its ERISA
Affiliates under ERISA as a result thereof exceeds $1,000,000; or the
complete or partial withdrawal subsequent to the Closing Date by Borrower
or any of its ERISA Affiliates from any Multiemployer Plan if the aggregate
liability of Borrower and its ERISA Affiliates as a result thereof would
constitute a Material Adverse Effect; or
(l) a Change of Control or a Change of Ownership shall have
occurred.
9.02 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Agent or the Lenders provided for elsewhere in this
Agreement or the Loan Documents, or by applicable law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default (other than an Event of Default described in
Section 9.01(j)):
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(i) the Commitments and all other obligations of the Agent
and the Lenders under the Loan Documents shall be suspended without
notice to or demand upon any Loan Party, which are expressly waived by
each Loan Party to the fullest extent permitted by applicable law,
except that the Majority Lenders may waive the Event of Default or,
without waiving, determine, upon terms and conditions satisfactory to
the Majority Lenders, to reinstate the Commitments;
(ii) the Majority Lenders may request the Issuing Lender to,
and the Issuing Lender thereupon shall, demand immediate payment by
each Loan Party of an amount equal to the aggregate outstanding face
amount of all Letters of Credit, which amount shall be deposited into
a deposit account established by or maintained with the Agent as cash
collateral for any reimbursement obligations under the Letters of
Credit as and when drawings are made thereunder (and each Loan Party
hereby grants to the Agent and the Lenders a security interest in such
account); and
(iii) the Majority Lenders may request the Agent to, and
the Agent thereupon shall, terminate the Commitments and declare all
or any part of the unpaid principal of the Notes, all interest accrued
and unpaid thereon, and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the same shall
become and be forthwith due and payable, without protest, presentment
for payment, notice of dishonor, demand, or further notice of any
kind, all of which are expressly waived by each Loan Party to the
fullest extent permitted by applicable law.
(b) Upon the occurrence of any Event of Default described in
Section 9.01(j):
(i) the Commitments and all other obligations of the Agent
and the Lenders under the Loan Documents shall terminate without
notice to or demand upon any Loan Party, which are expressly waived by
each Loan Party to the fullest extent permitted by applicable law;
(ii) an amount equal to the aggregate outstanding face
amount of the Letters of Credit shall be forthwith due and payable to
the Issuing Lender without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are
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waived by each Loan Party to the fullest extent permitted by
applicable law, which amount shall be deposited into a deposit
account established by or maintained with the Agent as cash
collateral for any reimbursement obligations under the Letters of
Credit as when drawings are made thereunder (and each Loan Party
hereby grants to the Agent and the Lenders a security interest in
such account); and
(iii) the unpaid principal of the Advances, all interest
accrued and unpaid thereon and all other amounts payable under the
Loan Documents shall be forthwith due and payable, without protest,
presentment for payment, notice of dishonor, demand or further notice
of any kind, all of which are expressly waived by each Loan Party to
the fullest extent permitted by applicable law.
(c) Upon the occurrence of any Event of Default, the Agent,
without notice to (except as expressly provided for in any Loan Document)
or demand upon each Loan Party, which are expressly waived by any Loan
Party to the fullest extent permitted by applicable law, may proceed to
protect, exercise, and enforce the rights and remedies of the Agent and the
Lenders under the Loan Documents against each Loan Party and such other
rights and remedies as are provided by law or equity.
ARTICLE X
THE AGENT
10.01 APPOINTMENT AND AUTHORIZATION. Each Lender hereby
irrevocably appoints, designates and authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein, nor shall the
Agent have or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
10.02 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement or any other Loan Document by
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or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct of any agent
or attorney-in-fact that it selects with reasonable care.
10.03 LIABILITY OF AGENT. None of the Agent-Related Persons shall
(i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the
Lenders for any recital, statement, representation or warranty made by the
Borrower or any Subsidiary or Affiliate of the Borrower, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the 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 the Borrower 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
properties, books or records of the Borrower or any of the Borrower's
Subsidiaries or Affiliates.
10.04 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other
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Loan Document in accordance with a request or consent of the Majority
Lenders and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Agent to
such Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory
to the Lender unless such Lender notifies the Agent to the contrary.
10.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Agent for the account of the Lenders, unless
the Agent shall have received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Agent will notify the
Lenders of its receipt of any such notice. The Agent shall take such action
with respect to such Default or Event of Default as may be requested by the
Majority Lenders in accordance with Article IX; PROVIDED, HOWEVER, that
unless and until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
10.06 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 the Agent hereinafter taken, including any review of the affairs of
the Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Agent that it has, independently and without
reliance upon any Agent-Related
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Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to
the Borrower and its Subsidiaries hereunder. 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 the Borrower. Except
for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Agent, the 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 the Borrower which may come into the
possession of any of the Agent-Related Persons.
10.07 INDEMNIFICATION. 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
the Borrowers and without limiting the obligation of the Borrower to do so),
pro rata, from and against any and all Indemnified Liabilities; PROVIDED,
HOWEVER, that no Lender shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting solely from
such Person's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender shall reimburse the Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of
the Borrowers. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of the Agent.
10.08 AGENT IN INDIVIDUAL CAPACITY. Bank of America and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business
with the Borrower and its Subsidiaries and Affiliates as though Bank of
America were not the Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Borrower or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Subsidiary) and acknowledge that
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the Agent shall be under no obligation to provide such information to them.
With respect to its Advances, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" include
Bank of America in its individual capacity.
10.09 SUCCESSOR AGENT. The Agent may, and at the request of the
Majority Lenders shall, resign as Agent upon 30 days' notice to the Borrower
and the Lenders. If the Agent resigns under this Agreement, the Majority
Lenders shall appoint from among the Lenders a successor agent for the
Lenders which successor agent shall be approved by the Borrower. If no
successor agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the Lenders and
approval of the Borrower, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Agent and the term "Agent" shall mean such successor agent and the retiring
Agent's appointment, powers and duties as Agent shall be terminated. After
any retiring Agent's resignation hereunder as Agent, the provisions of this
Article X and Sections 11.03 and 11.09 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 the Agent hereunder until
such time, if any, as the Majority Lenders appoint a successor agent as
provided for above, with the approval of the Borrower.
ARTICLE XI
MISCELLANEOUS
11.01 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers,
privileges and remedies of the Agent or any Lender provided herein or in any
Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by law or equity. No failure or delay on
the part of the Agent or any Lender in exercising any right, power, privilege
or remedy may be, or may be deemed to be, a waiver thereof; nor may any
single or partial exercise of any right, power, or remedy preclude any other
or further exercise of any other right, power, privilege or remedy. The
terms and conditions of Sections 4.01 and 4.02 hereof are inserted for the
sole benefit of the Lenders and the Agent may (with the approval of the
Majority Lender) waive them in whole or in part with or
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without terms or conditions in respect of any Advance or Letter of Credit,
without prejudicing the Lenders' rights to assert them in whole or in part in
respect of any other Advance or Letter of Credit.
11.02 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, termination, or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by any Loan Party
therefrom, may in any event be effective unless in writing signed by the
Agent with the written approval of the Majority Lender, and then only in the
specific instance and for the specific purpose given; and without the
approval in writing of all the Lenders, no amendment, modification,
supplement, termination, waiver, or consent may be effective:
(a) to amend or modify the principal of, or decrease the amount
of principal prepayments or the rate of interest payable on, any Obligation
or increase the amount of any of the Commitments or decrease the amount of
any fee payable to any Lender;
(b) to postpone any date fixed for any payment of principal of,
prepayment of principal of, or any interest on, any Obligation or any fee
or to extend the term of any of the Commitments;
(c) to amend or modify the provisions of the definition of
"Majority Lender" or of Section 11.02, 11.09 or 11.10;
(d) to amend or modify any provision of Section 2.10;
(e) release any Guarantor from the Guaranty unless such
Guarantor is merged, consolidated or disposed of as permitted by Section
7.01 or 7.02; or
(f) to amend or modify any provision of this Agreement or the
Loan Documents that expressly requires the consent or approval of all the
Lenders.
Any amendment, modification, supplement, termination, waiver, or consent
pursuant to this Section 11.02 shall apply equally to, and shall be binding
upon, all the Lenders and the Agent.
11.03 COSTS, EXPENSES AND TAXES. Borrower shall pay on demand the
reasonable costs and reasonable expenses of the Agent in connection with the
negotiation, preparation, execution and delivery of the Loan Documents, or
any amendment or waiver
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thereto requested by the Borrower, including reasonable travel expenses, and
other out of pocket expenses and the reasonable fees and out of pocket
expenses of any legal counsel (including without limitation, the reasonable
allocated fees and expenses of Agent's in-house counsel and staff),
independent public accountants, and other outside experts retained by the
Agent, and the reasonable costs, expenses or fees incurred or suffered by the
Agent in connection with or during the course of any bankruptcy or insolvency
proceedings of Borrower, or any Subsidiary of Borrower. After the occurrence
and during the continuation of a Default or an Event of Default, Borrower
shall pay on demand the reasonable costs and expenses of the Agent and each
of the Lenders in connection with the amendment, waiver, refinancing,
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of any Loan Documents and any matter
related thereto, including reasonable travel expenses and other out of pocket
expenses and the reasonable fees and other out of pocket expenses of any
legal counsel retained by or employed by any of the Lenders, including any
reasonable costs, expenses or fees incurred or suffered by any of the Lenders
in connection with or during the course of any bankruptcy or insolvency
proceedings of Borrower, or any Subsidiary of Borrower. Borrower shall pay
any and all documentary and other taxes (other than income or gross receipts
taxes generally applicable to such type of lender) and all costs, expenses,
fees and charges payable or determined to be payable in connection with the
filing or recording of any Loan Document or any other instrument or writing
to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto, and shall reimburse, hold harmless
and indemnify the Agent and each Lender from and against any and all loss,
liability or legal or other expense with respect to or resulting from any
delay in paying or failure to pay any tax, cost, expense, fee or charge that
any of them may suffer or incur by reason of the failure of any Loan Party to
perform any of its Obligations. Any amount payable to the Agent or any
Lender under this Section 11.03 shall be due and payable and bear interest
from the date which is 10 days after the date of receipt of demand for
payment at the Base Rate.
11.04 NATURE OF LENDER'S OBLIGATIONS. Each Lender's obligation to
make any Advance pursuant hereto is several and not joint or joint and
several. A default by any Lender will not increase the Pro Rata Share of the
Commitments attributable to any other Lender. Any Lender not in default may,
if it desires, assume in such proportion as the nondefaulting Lenders agree
the obligations of any Lender in default, but is not obligated to do so. The
Agent agrees that it will use its best efforts either to induce the other
Lenders to assume the obligations of a Lender in
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default or to obtain another Lender, reasonably satisfactory to Borrower, to
replace such a Lender in default.
11.05 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan Document
or in any certificate or other writing delivered by or on behalf of any one
or more of the parties to any Loan Document, will survive the making of the
Advances hereunder and the execution and delivery of the Notes,
notwithstanding any investigation made by the Agent or any Lender or on their
behalf.
11.06 NOTICES. Except as otherwise expressly provided in the Loan
Documents, (a) all notices, requests, demands, directions, and other
communications provided for hereunder and under any other Loan Document must
be in writing and must be mailed, telegraphed, telecopied, delivered, or sent
by telex, or cable to the appropriate party at the address set forth on
Schedule 11.06 or other applicable Loan Document or, as to any party to any
Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with
this Section 11.06 and (b) any notice, request, demand, direction, or other
communication given by telegram, telecopier, telex, or cable must be
confirmed within 48 hours by letter mailed or delivered to the appropriate
party at its respective address. Except as otherwise expressly provided in
any Loan Document if any notice, request, demand, direction, or other
communication required or permitted by any Loan Document is given by mail it
will be effective on the earlier of receipt or the third calendar day after
deposit in the United States mail with first class or airmail postage
prepaid; if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid; if given by telex or telecopier, when received;
or if given by personal delivery, when delivered.
11.07 EXECUTION IN COUNTERPARTS. Unless the Agent otherwise
specifies with respect to any Loan Document, this Agreement and any other
Loan Document may be executed in any number of counterparts and any party
hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts
of this Agreement or any other Loan Document, as the case may be, taken
together will be deemed to be but one and the same instrument. The execution
of this Agreement or any other Loan Document by any party hereto or thereto
will not become effective until counterparts hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be,
have been executed by all the parties hereto or thereto.
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11.08 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents shall be binding
upon and inure to the benefit of the Borrower, each Guarantor and each
Subsidiary Borrower, the Agent, each of the Lenders, and their respective
successors and assigns, except that the Borrower, each Guarantor and each
Subsidiary Borrower may not assign its rights hereunder or thereunder or
any interest herein or therein without the prior written consent of all the
Lenders, except for any such assignment resulting from any merger permitted
by this Agreement. Each Lender and the Agent shall have the right to sell
or transfer any participation interest in this Agreement. Each Lender and
the Agent shall have the right to sell or transfer any participation
interest in this Agreement, the Advances, the Notes, the Commitments and
the Letters of Credit in accordance with the provisions of this
Section 11.08. Each Lender represents that it is not acquiring its Notes
with a view to the distribution thereof within the meaning of the
Securities Act of 1933, as amended (subject to any requirement that
disposition of such Notes must be within the control of such Lender). Any
Lender may at any time pledge its Notes or any other instrument evidencing
its rights as a Lender under this Agreement to a Federal Reserve Lender,
but no such pledge shall release that Lender from its obligations
hereunder.
(b) From time to time each Lender may, with the prior consent of
Borrower, assign to one or more Eligible Assignees a portion of its Pro
Rata Share of the Commitments (including its interest in the Letters of
Credit); provided that (i) such Eligible Assignee, if not then a Lender,
shall be reasonably acceptable to the Agent, (ii) such assignment shall be
evidenced by a Commitment Assignment and Acceptance, a copy of which shall
be furnished to the Agent for registration as hereinbelow provided,
(iii) the assignment shall not assign a portion of the Commitments in an
amount less than $15,000,000, without the Borrower's consent, and (iv) the
effective date of any such assignment shall be as specified in the
Commitment Assignment and Acceptance, but not earlier than the date which
is five (5) Business Days after the later of the date Borrower has
consented to such assignment and the date the Agent has registered the
Commitment Assignment and Acceptance in the register kept for that purpose
by the Agent as described below. The prior consent of Borrower referred to
in the previous sentence shall not be unreasonably withheld; provided, that
it shall not be unreasonable for the Borrower to withhold consent to any
assignment to an Eligible Assignee which (x) is not capable of funding in
Pounds
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Sterling, Canadian Dollars, Deutsche Marks, Spanish Pesetas, Swiss
Francs, French Francs, Belgian Francs, Italian Lira, ECU, Swedish Krona,
Norwegian Krone, Australian Dollars, Japanese Yen or such other Alternative
Currency in which the Borrower has previously received Eurocurrency Rate
Committed Advances and (y) is unable to enter into a funding arrangement,
reasonably acceptable to the Borrower and the Agent, pursuant to which an
existing Lender will fund such currencies on such Eligible Assignee's
behalf. Upon the effective date of such Commitment Assignment and
Acceptance, the Eligible Assignee named therein shall be a Lender for all
purposes of this Agreement, with the Pro Rata Share of the Commitments
therein set forth and, to the extent of such Pro Rata Share, the assigning
Lender shall be released from all of its obligations under this Agreement
assumed by such assignee Lender. The Borrower agrees that it shall, upon
the request of the assignee Lender, execute and deliver (against delivery
by the assigning Lender to such Loan Party of any Committed Advance Notes)
to such assignee Lender, a Committed Advance Note evidencing that assignee
Lender's Pro Rata Share of the Commitment, and to the assigning Lender, if
requested by such assigning Lender, a Committed Advance Note evidencing the
remaining Pro Rata Share retained by the assigning Lender. The Borrower
agrees that it shall also execute and deliver (against delivery by the
assigning Lender to such Borrower of its Bid Notes) to such assignee
Lender, a Bid Advance Note evidencing that assignee Lender's Bid Advances,
and to the assigning Lender, a Bid Advance Note evidencing the Bid Advances
of the assigning Lender.
(c) By executing and delivering a Commitment Assignment and
Acceptance, the assigning Lender thereunder: (i) other than as provided in
such Commitment Assignment and Acceptance, assigns without recourse and
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 any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished pursuant
hereto; and (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its Obligations
under this Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto.
(d) By executing and delivering a Commitment Assignment and
Acceptance, the assignee Lender or Eligible Assignee thereunder
acknowledges and agrees that: (i) other
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than the representation and warranty that it is the legal and beneficial
owner of the Pro Rata Share of the Commitments being assigned thereby fee
and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document;
(ii) the assigning Lender has made no representation or warranty and assumes
no responsibility with respect to the financial condition of any Loan Party
or the performance by any Loan Party of the Obligations; (iii) it has
received a copy of this Agreement together with copies of the most recent
financial statements delivered pursuant to this Agreement and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment Assignment and
Acceptance; (iv) it will, independently and without reliance upon the Agent,
the 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) if not then a Lender, it is an Eligible Assignee; (vi) it appoints and
authorizes the Agent and the Issuing Lender to take such action and to
exercise such powers under this Agreement as are delegated to the Agent and
the Issuing Lender by Article X and Section 3.06; and (vii) it will perform
in accordance with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(e) The Agent shall maintain at the Agent's Office a copy of
each Commitment Assignment and Acceptance delivered to it and a register
(the "Register") for recordation, upon payment to the Agent by the
assigning Lender of a registration fee of $3,500.00, of the names and
addresses of the Lenders and their respective Pro Rata Shares of the
Commitments. The entries in the Register shall be conclusive for all
purposes, in the absence of manifest error, and each Loan Party, the Agent
and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. Such
Register shall be available for inspection by any Loan Party or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
Promptly following any entry in the Register, the Agent shall provide to
each Loan Party and the Lenders a revised Schedule 1.01 giving effect
thereto.
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(f) Upon its receipt of a Commitment Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, the Agent shall, if such Commitment Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, and subject to receipt of the written consent of Borrower and the
Agent, if required hereby, (i) accept such Commitment Assignment and
Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to each Loan Party.
(g) Each Lender may from time to time, with the consent of
Borrower (or without the consent of the Borrower in the case of granting a
participation solely in a Bid Advance), grant participations to one or more
Lenders or other financial institutions (or any Person, in the case of
granting a participation solely in a Bid Advance) in all or a portion of
its Pro Rata Share of the Commitments, including its interest in the
Letters of Credit; PROVIDED, HOWEVER, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participating Lenders or other entities shall not be
a Lender hereunder for any purpose except, if the participation agreement
so provides, for the purposes of Sections 2.13(a), 2.18, 2.20, 3.07, 11.09,
11.10 and 11.14 but only to the extent that such costs payable by each Loan
Party do not exceed the cost which each Loan Party would have incurred in
respect of such Lender absent the participation, (iv) each Loan Party, the
Agent, the Issuing Lender and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (v) no Lender shall grant
any participation under which the consent of the holder of the
participation interest is required for amendments or waivers of provisions
of the Loan Documents other than those which (A) increase the monetary
amount of any of the Commitments, (B) postpone any date fixed for any
scheduled payments of principal or interest with respect to the Advances or
any fees or other amounts payable to such Lender hereunder in which such
participant has a direct monetary interest or (C) reduce the rate of
interest on the Advances, any fee or any other monetary amount payable to
the Lenders in which such participant has a direct monetary interest;
PROVIDED that holder of a participation in a Bid Advance shall have the
right to consent only to the actions described in clauses (B) and (C), and
then only if it affects such Bid Advance. The prior consent of Borrower
referred to in the previous sentence shall not be unreasonably withheld.
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11.09 INDEMNITY BY LOAN PARTIES. The Borrower and each Subsidiary
Borrower hereby agrees to indemnify, save, and hold harmless the Agent and each
Lender and their Affiliates, directors, officers, agents, attorneys, and
employees (collectively, the "Indemnitees") from and against: (a) any and all
claims, demands, actions, or causes of action that are asserted against any
Indemnitee by any Person (other than any Loan Party or any Lender) if the claim,
demand, action, or cause of action primarily relates to a claim, demand, action,
or cause of action that such Person asserts or may assert against any Loan
Party, any Affiliate of any Loan Party or any officer, director or shareholder
of any Loan Party; (b) any and all claims, demands, actions or causes of action
that are asserted against any Indemnitee by any Person (other than any Loan
Party or any Lender) if the claim, demand, action or cause of action arises out
of or relates to the Commitments, the use or contemplated use of proceeds of any
Advance, or the relationship of any Loan Party and the Lenders under this
Agreement; (c) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clauses (a) or (b) above; and (d) any and all
liabilities, losses, costs, or expenses (including reasonable attorneys' fees
and disbursements and fees for other professional services) that any Indemnitee
suffers or incurs as a result of any of the foregoing; provided, that no
Indemnitee shall be entitled to indemnification for any liability, loss, cost or
expense caused directly or indirectly by any Indemnitee's own gross negligence
or willful misconduct (collectively the "Indemnified Liabilities"). If any
claim, demand, action or cause of action is asserted against any Indemnitee and
such Indemnitee intends to claim indemnification from any Loan Party under this
Section, such Indemnitee shall promptly notify such Loan Party, but the failure
to so promptly notify such Loan Party shall not affect such Loan Party's
obligations under this Section unless such failure materially prejudices such
Loan Party's right to participate in the contest of such claim, demand, action
or cause of action, as hereinafter provided. Each Indemnitee may, and if
requested by such Loan Party in writing shall, in good faith contest the
validity, applicability and amount of such claim, demand, action or cause of
action with counsel selected by such Indemnitee and reasonably acceptable to
such Loan Party, and shall permit such Loan Party to participate in such
contest. Any Indemnitee that proposes to settle or compromise any claim or
proceeding for which such Loan Party may be liable for payment of indemnity
hereunder shall obtain such Loan Party's prior written consent, which consent
shall not be unreasonably withheld. In connection with any claim, demand,
action or cause of action covered by this Section against more than one
Indemnitee, all such Indemnitees shall be represented by the same legal counsel
selected by the Indemnitees and reasonably acceptable to
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Borrower; provided, that if such legal counsel determines in good faith and
advises Borrower in writing that representing all such Indemnitees would or
could result in a conflict of interest under laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is
available to an Indemnitee that is not available to all such Indemnitees,
then to the extent reasonably necessary to avoid such a conflict of interest
or to permit unqualified assertion of such a defense or counterclaim, each
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower. Any
obligation or liability of any Loan Party to any Indemnitee under this
Section shall survive the expiration or termination of this Agreement and the
repayment of all Advances and the payment and performance of all other
Obligations owed to the Lenders for the applicable statute of limitations
period.
11.10 HAZARDOUS MATERIALS INDEMNITY. The Borrower and the Subsidiary
Borrowers each hereby agree to indemnify, hold harmless and defend (by counsel
reasonably satisfactory to the Agent) each of the Lenders and their respective
directors, officers, employees, agents, successors and assigns from and against
any and all claims, losses, damages, liabilities, fines, penalties and charges,
resulting from any administrative and judicial proceedings and orders,
judgments, or remedial enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including but not limited to
reasonable attorneys' fees and expenses to the extent that the defense of any
such action has not been assumed by any Loan Party), arising directly or
indirectly, in whole or in part, out of (i) the presence, any release or
discharge of any Hazardous Materials on, under or from the real property and
(ii) any activity carried on or undertaken on or off the real property by
Borrower or any of its Subsidiaries or any of their respective predecessors in
title, whether prior to or during the term of this Agreement, and whether by
Borrower or any of its Subsidiaries or any of their respective predecessors in
title or any employees, agents, contractors or subcontractors of Borrower or any
of its Subsidiaries or any of their respective predecessors in title, or any
third persons at any time occupying or present on the real property, in
connection with the handling, treatment, removal, storage, decontamination,
clean-up, transport or disposal of any Hazardous Materials at any time located
or present on or under the real property. The foregoing indemnity shall further
apply to any residual contamination on or under the real property, or affecting
any natural resources, and to any contamination of any property or natural
resources arising in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and irrespective of
whether any of such activities were or will be undertaken in
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accordance with applicable Laws, but the foregoing indemnity shall not apply
to Hazardous Materials on the real property, the presence of which is
directly caused by the Agent or the Lenders.
11.11 NONLIABILITY OF LENDERS. Each Loan Party acknowledges and
agrees that:
(a) Any inspections of any property of any Loan Party made by or
through the Agent or the Lenders are for purposes of administration of the
Loan Documents only and such Loan Party is not entitled to rely upon the
same;
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Lenders or the Agent pursuant to the
Loan Documents, neither the Lenders nor the Agent shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and
such acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Lenders or the Agent;
(c) The relationship between the Loan Parties and the Lenders
arising out of or related to this Agreement is, and shall at all times
remain, solely that of a borrower and bank; neither the Agent nor any of
the Lenders shall under any circumstance be construed to be a partner or a
joint venturer of any Loan Party or any of their Affiliates; neither the
Agent nor any of the Lenders shall under any circumstance be deemed to be
in a fiduciary relationship with any Loan Party or their Affiliates in
connection with this Agreement, or to owe any fiduciary duty to any Loan
Party or their Affiliates in connection with this Agreement; neither the
Agent nor any of the Lenders undertakes or assumes any responsibility or
duty to any Loan Party or their Affiliates to select, review, inspect,
supervise, pass judgment upon or inform any Loan Party or their Affiliates
of any matter in connection with their property or the operations of the
Loan Parties or their Affiliates; each Loan Party and its Affiliates shall
rely entirely upon their own judgment with respect to such matters; and any
review, inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by the Lenders or the Agent in connection
with such matters is solely for the protection of the Agent and the Lenders
and neither the Loan Parties nor any other Person is entitled to rely
thereon; and
(d) Neither the Agent nor any of the Lenders shall be
responsible or liable to any Person for any loss,
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damage, liability or claim of any kind relating to injury or death
to Persons or damage to property or other loss, damage, liability
or claim caused by the actions, inaction or negligence of any Loan
Party and/or its Affiliates.
11.12 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from any Loan Party pursuant to or in
connection with this Agreement or the exercise of any rights hereunder in
confidence and to cause its officers, employees, agents and professional
advisors to do likewise. The foregoing shall not, however, restrict disclosure
of any such confidential information by any Lender (a) to other Lenders; (b) to
legal counsel, accountants and other professional advisors to any Loan Party or
that Lender retained in connection with this Agreement; (c) to regulatory
officials having jurisdiction over that Lender; (d) as required by law or legal
process or in connection with any legal proceeding to which that Lender and any
Loan Party are adverse parties; or (e) to another financial institution in
connection with a disposition or proposed disposition to that financial
institution of an assignment of or a participation interest in its Commitment
and/or Advances, provided that such disclosure is made subject to an appropriate
written confidentiality agreement on terms substantially similar to this Section
and provided further that Borrower is advised substantially concurrently with
such disclosure of the identity of such financial institution. For purposes of
the foregoing, "confidential information" shall mean any information respecting
Borrower or its Subsidiaries designated by Borrower or any Subsidiary to be
confidential, other than (i) information previously filed with any Governmental
Agency and available to the public without filing a request under the Freedom of
Information Act, (ii) information previously published in any public medium not
furnished directly or indirectly, by that Lender and (iii) information
previously disclosed by any Loan Party to any Person not associated or
affiliated with any Loan Party or any of its officers, directors, agents,
attorneys or employees without an appropriate confidentiality agreement and
subsequently disclosed by that Person. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the Agent
or the Lenders to any Loan Party.
11.13 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
each Loan Party, the Agent and the Lenders with respect to the Advances, and is
made for the sole benefit of each Loan Party, the Agent and the Lenders, and the
Agent's and the Lenders' successors and assigns. Except as provided in Sections
11.08 and 11.10, no other Person shall have any rights of any nature hereunder
or by reason hereof.
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11.14 RIGHT OF SETOFF. Upon the occurrence of an Event of Default,
each Loan Party hereby specifically authorizes each Lender (subject to the
approval of the Majority Lenders) in which they maintain deposit accounts
(whether a general or special deposit account, other than trust accounts) or a
certificate of deposit to setoff any Obligations owned to the Lenders against
such deposit account or certificate of deposit without prior notice to such Loan
Party (which notice is hereby waived) whether or not such deposit account or
certificate of deposit has then matured. Nothing in this Section shall limit or
restrict the exercise by a Lender of any right to setoff or banker's lien under
applicable Law, subject to the approval of the Majority Lenders.
11.15 JUDGMENT CURRENCY.
(a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder or under any instrument delivered
hereunder in any currency (the "Original Currency") into another currency
(the "Other Currency"), the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the
Original Currency with the Other Currency on the Business Day preceding
that on which final judgment is given.
(b) The obligation of each Loan Party in respect of any sum due
from it hereunder in the Original Currency shall, notwithstanding any
judgment in any Other Currency, be discharged only to the extent that on
the Business Day following receipt of any sum adjudged to be so due in such
Other Currency the Agent may in accordance with normal banking procedures
purchase such Original Currency with such Other Currency; if the amount of
the Original Currency so purchased is less than the sum originally due in
the Original Currency, such Loan Party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Lender or Person to
whom such amount was owing against such loss.
11.16 FURTHER ASSURANCES. Borrower and its Subsidiaries shall do,
execute, and deliver such further acts and documents as any Lender or the Agent
from time to time reasonably requires for the assuring and confirming unto the
Lenders or the Agent the rights hereby created or facilitating the exercise of
remedies or other rights available to the Lenders under any Loan Document.
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11.17 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.
11.18 GOVERNING LAW. Each Loan Document shall be governed by, and
construed and enforced in accordance with the laws of California without regard
to conflicts of laws.
11.19 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid as to any party or in
any jurisdiction shall, as to that party or that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions or the
operation, enforceability, or validity of that provision as to any party or in
any other jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
11.20 HEADINGS. Article and Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.21 CONFLICT IN LOAN DOCUMENTS. To the extent there is any actual
irreconcilable conflict between the provisions of this Agreement and any other
Loan Document, the provisions of this Agreement shall prevail.
11.22 WAIVER OF TRIAL BY JURY. WITH RESPECT TO ANY PROCEEDING IN A
COURT OF LAW, EACH LOAN PARTY (ON ITS BEHALF AND ON BEHALF OF ITS AFFILIATES)
AND THE AGENT AND EACH OF THE LENDERS HEREBY IN ANY EVENT EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF SUCH PERSONS OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT,
OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
EACH SUCH PERSON HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION SHALL BE DECIDED BY TRIAL COURT WITHOUT A JURY, AND THAT ANY
OTHER PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT OF TRIAL BY JURY.
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11.23 PURPORTED ORAL AMENDMENTS. EACH LOAN PARTY EXPRESSLY
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE
AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED,
BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.02. EACH LOAN PARTY
AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF AGENT OR ANY LENDER THAT
DOES NOT COMPLY WITH SECTION 11.02 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THE AGREEMENT OR THE OTHER LOAN DOCUMENTS.
11.24 AMENDMENT AND RESTATEMENT OF EXISTING CREDIT AGREEMENT. (a)
This Agreement amends and restates the Existing Credit Agreement, and, upon
execution and delivery by at least the Majority Lenders, the Agent and the
Borrower, is effective as to the Borrower, the Agent and all Lenders whether or
not signed by all Lenders. Advances outstanding under the Existing Credit
Agreement which are not paid or prepaid on or prior to the Closing Date
("Continuing Advances") shall be deemed to continue as Advances outstanding
hereunder with the same Interest Periods hereunder, and Continuing Letters of
Credit shall be deemed to continue as Letters of Credit outstanding hereunder.
The Applicable Margin set forth in this Agreement with respect to Eurocurrency
Rate Committed Advances, Standby Letter of Credit fees and commitment fees shall
become effective immediately on the Closing Date. Continuing Advances which are
Bid Advances shall continue with the same interest period and shall continue to
bear interest at the existing interest rate. Any interest, fees and other
amounts accrued, but unpaid under the Existing Credit Agreement shall continue
to accrue and be payable hereunder on the dates set forth herein for such types
of interest, fees and other amounts.
(b) Sections 7.01(d) and 7.01(f) of this Agreement shall be deemed
effective June 28, 1997.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWER:
--------
SUNRISE MEDICAL, INC.,
as Borrower and as a Guarantor
By:
---------------------------
Xxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
GUARANTORS
----------
SUNMED FINANCE INC.
SUNRISE MARIN HOLDINGS INC.
SUNRISE MEDICAL CCG INC.
SUNRISE MEDICAL HHG INC.
By:
--------------------------
Xxx X. Xxxxxx
Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By:
---------------------------
Xxxxxxx Xxxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Lender
By:
--------------------------
Vice President
(Signatures continue)
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NATIONSBANK OF TEXAS, N.A.
By:
---------------------------
Name:
Title:
- 123 -
ABN AMRO BANK NV Los Angeles
International Branch
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
- 124 -
UNION BANK OF CALIFORNIA, N.A.
By:
---------------------------
Name:
Title:
- 125 -
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
---------------------------
Name:
Title:
- 000 -
XXXXXXXX XXXX XX, Xxx Xxxx
Branch and/or Caymen Islands
Branch
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
- 127 -
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------
Name:
Title:
- 128 -
