CREDIT AGREEMENT dated as of September 26, 2005 among CELADON GROUP, INC., CELADON TRUCKING SERVICES, INC. and TRUCKERSB2B, INC. as the Borrowers THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO, as Lenders, and LASALLE BANK NATIONAL ASSOCIATION, as...
dated
as of September 26, 2005
among
CELADON
GROUP, INC.,
CELADON
TRUCKING SERVICES, INC.
and
TRUCKERSB2B,
INC.
as
the Borrowers
THE
VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,
as
Lenders,
and
LASALLE
BANK NATIONAL ASSOCIATION,
as
Administrative Agent
LASALLE
BANK NATIONAL ASSOCIATION,
as
Arranger
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DEFINITIONS.
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1
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1.1
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Definitions.
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1
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1.2
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Other
Interpretive Provisions.
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16
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SECTION
2
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COMMITMENTS
OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT
PROCEDURES.
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17
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2.1
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Commitments.
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17
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2.1.1 Revolving
Loan Commitment.
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18
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2.1.2 L/C
Commitment.
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18
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2.2
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Loan
Procedures.
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18
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2.2.1 Various
Types of
Loans.
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18
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2.2.2 Borrowing
Procedures.
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18
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2.2.3 Conversion
and Continuation Procedures.
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19
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2.2.4 Swing
Line
Facility.
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20
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2.3
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Letter
of Credit Procedures.
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21
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2.3.1 L/C
Applications.
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21
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2.3.2 Participations
in Letters of Credit.
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22
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2.3.3 Reimbursement
Obligations.
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22
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2.3.4 Funding
by Lenders
to Issuing Lender.
|
23
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2.4
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Commitments
Several.
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24
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2.5
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Certain
Conditions.
|
24
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2.6
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Agent
for the Borrowers.
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24
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SECTION
3
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EVIDENCING
OF LOANS.
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24
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3.1
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Notes.
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24
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3.2
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Recordkeeping.
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24
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SECTION
4
|
INTEREST.
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25
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4.1
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Interest
Rates.
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25
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4.2
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Interest
Payment Dates.
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25
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4.3
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Setting
and Notice of LIBOR Rates.
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25
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4.4
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Computation
of Interest.
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25
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SECTION
5
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FEES.
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26
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5.1
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Non-Use
Fee.
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26
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5.2
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Letter
of Credit Fees.
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26
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5.3
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Administrative
Agent’s Fees.
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26
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SECTION
6
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REDUCTION
OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS; INCREASE
IN
REVOLVING COMMITMENT.
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26
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6.1
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Reduction
or Termination of the Revolving Commitment.
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26
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6.1.1 Voluntary
Reduction
or Termination of the Revolving Commitment.
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26
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6.1.2 All
Reductions of
the Revolving Commitment.
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27
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6.2
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Voluntary
Prepayments.
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27
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6.3
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Repayments.
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27
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i
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6.4
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Increase
in Revolving Commitment.
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27
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SECTION
7
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MAKING
AND PRORATION OF PAYMENTS; SETOFF; TAXES.
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28
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7.1
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Making
of Payments.
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28
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7.2
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Application
of Certain Payments.
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28
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7.3
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Due
Date Extension.
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28
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7.4
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Setoff.
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29
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7.5
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Proration
of Payments.
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29
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7.6
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Taxes.
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29
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SECTION
8
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INCREASED
COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.
|
31
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8.1
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Increased
Costs.
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31
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8.2
|
Basis
for Determining Interest Rate Inadequate or Unfair.
|
32
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8.3
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Changes
in Law Rendering LIBOR Loans Unlawful.
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32
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8.4
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Funding
Losses.
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33
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8.5
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Right
of Lenders to Fund through Other Offices.
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33
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8.6
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Discretion
of Lenders as to Manner of Funding.
|
33
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8.7
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Mitigation
of Circumstances; Replacement of Lenders.
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33
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8.8
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Conclusiveness
of Statements; Survival of Provisions.
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34
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SECTION
9
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REPRESENTATIONS
AND WARRANTIES.
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34
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9.1
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Organization.
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34
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9.2
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Authorization;
No Conflict.
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34
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9.3
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Validity
and Binding Nature.
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35
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9.4
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Financial
Condition.
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35
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9.5
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No
Material Adverse Change.
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35
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9.6
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Litigation
and Contingent Liabilities.
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35
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9.7
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Ownership
of Properties; Liens.
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35
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9.8
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Equity
Ownership; Subsidiaries.
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35
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9.9
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Pension
Plans.
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36
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9.10
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Investment
Company Act.
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37
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9.11
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Public
Utility Holding Company Act.
|
37
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9.12
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Regulation
U.
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37
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9.13
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Taxes.
|
37
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9.14
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Solvency,
etc.
|
37
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9.15
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Environmental
Matters.
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37
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9.16
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Insurance.
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38
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9.17
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Real
Property.
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38
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9.18
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Information.
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38
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9.19
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Intellectual
Property.
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38
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9.20
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Burdensome
Obligations.
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39
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9.21
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Labor
Matters.
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39
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9.22
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No
Default.
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39
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SECTION
10
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AFFIRMATIVE
COVENANTS.
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39
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ii
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10.1
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Reports,
Certificates and Other Information.
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39
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10.1.1 Annual
Report.
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39
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10.1.2 Interim
Reports.
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39
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10.1.3 Compliance
Certificates.
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40
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10.1.4 Reports
to the SEC
and to Shareholders.
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40
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10.1.5 Notice
of Default,
Litigation and ERISA Matters.
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40
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10.1.6 Management
Reports.
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41
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10.1.7 Projections.
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41
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10.1.8 Subordinated
Debt
Notices.
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41
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10.1.9 Other
Information.
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41
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10.2
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Books,
Records and Inspections.
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41
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10.3
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Maintenance
of Property; Insurance.
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42
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10.4
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Compliance
with Laws; Payment of Taxes and Liabilities.
|
42
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10.5
|
Maintenance
of Existence, etc.
|
42
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10.6
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Use
of Proceeds.
|
43
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10.7
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Employee
Benefit Plans.
|
43
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10.8
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Environmental
Matters.
|
43
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10.9
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Further
Assurances.
|
43
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SECTION
11
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NEGATIVE
COVENANTS
|
44
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11.1
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Debt.
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44
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11.2
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Liens.
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44
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11.3
|
Intentionally
Omitted.
|
45
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11.4
|
Restricted
Payments.
|
45
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|
11.5
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Mergers,
Consolidations, Sales.
|
45
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11.6
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Modification
of Organizational Documents.
|
47
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11.7
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Transactions
with Affiliates.
|
47
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11.8
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Unconditional
Purchase Obligations.
|
47
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11.9
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Inconsistent
Agreements.
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47
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11.10
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Business
Activities; Issuance of Equity.
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48
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11.11
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Investments.
|
48
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11.12
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[Intentionally
Omitted].
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49
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11.13
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Fiscal
Year.
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49
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11.14
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Financial
Covenants.
|
49
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11.14.1 Fixed
Charge Coverage Ratio.
|
49
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11.14.2 Lease-Adjusted
Total Debt to EBITDAR Ratio.
|
49
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11.14.3 Tangible
Net
Worth.
|
49
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|||
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11.14.4 Asset
Coverage
Ratio.
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49
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SECTION
12
|
EFFECTIVENESS;
CONDITIONS OF LENDING, ETC.
|
49
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12.1
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Initial
Credit Extension.
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49
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|
12.1.1 Notes.
|
50
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|||
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12.1.2 Authorization
Documents.
|
50
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|||
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12.1.3 Consents,
etc.
|
50
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|||
|
12.1.4 Letter
of
Direction.
|
50
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|||
iii
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12.1.5 Guaranty.
|
50
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|||
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12.1.6 Opinions
of
Counsel.
|
50
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12.1.7 Insurance.
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50
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|
12.1.8 Payment
of
Fees.
|
50
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12.1.9 Search
Results;
Lien Terminations.
|
51
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12.1.10
Closing
Certificate, Consents and Permits.
|
51
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12.1.11
Other.
|
51
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12.2
|
Conditions.
|
51
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12.2.1 Compliance
with Warranties, No Default, etc.
|
51
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|||
|
12.2.2 Confirmatory
Certificate.
|
51
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|
SECTION
13
|
EVENTS
OF DEFAULT AND THEIR EFFECT.
|
52
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13.1
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Events
of Default.
|
52
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||
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13.1.1 Non-Payment
of the
Loans, etc.
|
52
|
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|
13.1.2 Non-Payment
of
Other Debt.
|
52
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|||
|
13.1.3 Other
Material
Obligations.
|
52
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|||
|
13.1.4 Bankruptcy,
Insolvency, etc.
|
52
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|||
|
13.1.5 Non-Compliance
with
Loan Documents.
|
52
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|||
|
13.1.6 Representations;
Warranties.
|
53
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|||
|
13.1.7 Pension
Plans.
|
53
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|||
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13.1.8 Judgments.
|
53
|
|||
|
13.1.9 Invalidity
of
Guaranty.
|
53
|
|||
|
13.1.10
Invalidity
of Subordination Provisions, etc.
|
53
|
|||
|
13.1.11
Change
of Control.
|
53
|
|||
|
13.1.12
Material
Adverse Effect.
|
53
|
|||
|
13.2
|
Effect
of Event of Default.
|
53
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|
SECTION
14
|
THE
AGENT.
|
54
|
||
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14.1
|
Appointment
and Authorization.
|
54
|
||
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14.2
|
Issuing
Lender.
|
54
|
||
|
14.3
|
Delegation
of Duties.
|
55
|
||
|
14.4
|
Exculpation
of Administrative Agent.
|
55
|
||
|
14.5
|
Reliance
by Administrative Agent.
|
55
|
||
|
14.6
|
Notice
of Default.
|
56
|
||
|
14.7
|
Credit
Decision.
|
56
|
||
|
14.8
|
Indemnification.
|
56
|
||
|
14.9
|
Administrative
Agent in Individual Capacity.
|
57
|
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|
14.10
|
Successor
Administrative Agent.
|
57
|
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|
14.11
|
Administrative
Agent May File Proofs of Claim.
|
58
|
||
|
14.12
|
Other
Agents; Arrangers and Managers.
|
58
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|
SECTION
15
|
GENERAL.
|
59
|
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|
15.1
|
Waiver;
Amendments.
|
59
|
||
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15.2
|
Confirmations.
|
59
|
||
|
15.3
|
Notices.
|
59
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||
iv
|
15.4
|
Computations.
|
60
|
||
|
15.5
|
Costs,
Expenses and Taxes.
|
60
|
||
|
15.6
|
Assignments;
Participations.
|
61
|
||
|
15.6.1 Assignments.
|
61
|
|||
|
15.6.2 Participations.
|
62
|
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|
15.7
|
Register.
|
62
|
||
|
15.8
|
GOVERNING
LAW.
|
62
|
||
|
15.9
|
Confidentiality.
|
62
|
||
|
15.10
|
Severability.
|
63
|
||
|
15.11
|
Nature
of Remedies.
|
63
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||
|
15.12
|
Entire
Agreement.
|
64
|
||
|
15.13
|
Counterparts.
|
64
|
||
|
15.14
|
Successors
and Assigns.
|
64
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||
|
15.15
|
Captions.
|
64
|
||
|
15.16
|
Customer
Identification - USA Patriot Act Notice.
|
64
|
||
|
15.17
|
INDEMNIFICATION
BY THE COMPANY.
|
64
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||
|
15.18
|
Nonliability
of Lenders.
|
65
|
||
|
15.19
|
JOINT
AND SEVERAL LIABILITY/CONTRIBUTION.
|
66
|
||
|
15.20
|
FORUM
SELECTION AND CONSENT TO JURISDICTION.
|
66
|
||
|
15.21
|
WAIVER
OF JURY TRIAL.
|
67
|
v
ANNEXES
|
ANNEX
A
|
Lenders
and Pro Rata Shares
|
|
ANNEX
B
|
Addresses
for Notices
|
SCHEDULES
|
SCHEDULE
9.6
|
Litigation
and Contingent Liabilities
|
|
SCHEDULE
9.8
|
Subsidiaries
|
|
SCHEDULE
9.16
|
Insurance
|
|
SCHEDULE
9.17
|
Real
Property
|
|
SCHEDULE
9.21
|
Labor
Matters
|
|
SCHEDULE
11.1
|
Existing
Debt
|
|
SCHEDULE
11.2
|
Existing
Liens
|
|
SCHEDULE
11.11
|
Investments
|
|
SCHEDULE
12.1
|
Debt
to be Repaid
|
EXHIBITS
|
EXHIBIT
A
|
Form
of Note (Section 3.1)
|
|
EXHIBIT
B
|
Form
of Compliance Certificate (Section 10.1.3)
|
|
EXHIBIT
C
|
Form
of Assignment Agreement (Section 15.6.1)
|
|
EXHIBIT
D
|
Form
of Notice of Borrowing (Section 2.2.2)
|
|
EXHIBIT
E
|
Form
of Notice of Conversion/Continuation (Section
2.2.3)
|
THIS
CREDIT AGREEMENT dated as of September 26, 2005 (this “Agreement”)
is
entered into among CELADON GROUP, INC., CELADON TRUCKING SERVICES, INC. and
TRUCKERSB2B, INC. (together, the “Borrowers”),
the
financial institutions that are or may from time to time become parties hereto
(together with their respective successors and assigns, the “Lenders”)
and
LASALLE BANK NATIONAL ASSOCIATION (in its individual capacity, “LaSalle”),
as
Administrative Agent for the Lenders, and as Swing Line Lender and Issuing
Lender.
The
Lenders have agreed to make available to the Borrowers a revolving credit
facility (which includes letters of credit) upon the terms and conditions set
forth herein.
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
SECTION
1 DEFINITIONS.
1.1 Definitions.
When
used
herein the following terms shall have the following meanings:
Acquisition
means
any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of all or substantially all
of
any business or division of a Person, (b) the acquisition of in excess of 50%
of
the Capital Securities of any Person, or otherwise causing any Person to become
a Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is already a Subsidiary).
Administrative
Agent
means
LaSalle in its capacity as administrative agent for the Lenders hereunder and
any successor thereto in such capacity.
Affected
Loan
- see
Section
8.3.
Affiliate
of any
Person means (a) any other Person which, directly or indirectly, controls or
is
controlled by or is under common control with such Person, (b) any officer
or
director of such Person and (c) with respect to any Lender, any entity
administered or managed by such Lender or an Affiliate or investment advisor
thereof and which is engaged in making, purchasing, holding or otherwise
investing in commercial loans. A Person shall be deemed to be “controlled by”
any other Person if such Person possesses, directly or indirectly, power to
vote
5% or more of the securities (on a fully diluted basis) having ordinary voting
power for the election of directors or managers or power to direct or cause
the
direction of the management and policies of such Person whether by contract
or
otherwise. Unless expressly stated otherwise
herein,
neither the Administrative Agent nor any Lender shall be deemed an Affiliate
of
any Loan Party.
Agent
Fee Letter
means
the Fee letter dated as of September 22, 2005 between the Company and the
Administrative Agent.
Agreement
- see
the Preamble.
Applicable
Margin
means,
for any day, the rate per annum set forth below opposite the level (the
“Level”)
then
in effect, it being understood that the Applicable Margin for (i) LIBOR Loans
shall be the percentage set forth under the column “LIBOR Margin”,
(ii) Base Rate Loans shall be the percentage set forth under the column
“Base Rate Margin”, (iii) the Non-Use Fee Rate shall be the percentage set forth
under the column “Non-Use Fee Rate” and (iv) the L/C Fee shall be the percentage
set forth under the column “L/C Fee Rate”:
|
Level
|
Lease
Adjusted Total Debt
to
EBITDAR Ratio
|
LIBOR
Margin
|
Base
Rate
Margin
|
Non-Use
Fee
Rate
|
L/C
Fee
Rate
|
|
I
|
Less
than 1.75 to 1.00
|
.750%
|
0%
|
.150%
|
.750%
|
|
II
|
Greater
than or equal to 1.75 to 1.00 but less than 2.25 to 1.00
|
.875%
|
0%
|
.175%
|
.875%
|
|
III
|
Greater
than or equal to 2.25 to 1.00 but less than 2.75 to 1.00
|
1.000%
|
0%
|
.200%
|
1.000%
|
|
IV
|
Greater
than or equal to 2.75 to 1.00
|
1.125%
|
0%
|
.225%
|
1.125%
|
The
LIBOR
Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall
be
adjusted, to the extent applicable, on the fifth (5th) Business Day after the
Company provides or is required to provide the annual and quarterly financial
statements and other information pursuant to Sections
10.1.1
or
10.1.2,
as
applicable, and the related Compliance Certificate, pursuant to Section
10.1.3.
Notwithstanding anything contained in this paragraph to the contrary, (a) if
the
Company fails to deliver the financial statements and Compliance Certificate
in
accordance with the provisions of Sections 10.1.1,
10.1.2
and
10.1.3,
the
LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate
shall be based upon Level IV above beginning on the date such financial
statements and Compliance Certificate were required to be delivered until the
fifth (5th) Business Day after such financial statements and Compliance
Certificate are actually delivered, whereupon the Applicable Margin shall be
determined by the then current Level; (b) no reduction to any Applicable Margin
shall become effective at any time when an Event of Default or Unmatured Event
of Default has occurred and is continuing; and (c) the initial Applicable Margin
on the Closing Date shall be based on Level II until the date on which
the
financial statements and Compliance Certificate are required to be delivered
for
the Fiscal Quarter ending December 31, 2005.
Asset
Coverage Ratio
means,
with respect to the Company and the other Loan Parties on a consolidated basis
for any period, the ratio of (a) the sum of (i) the net book value of accounts
receivable less than 90 days past due plus
(ii) the
net book value of unencumbered trucks, truck-tractors, trailers and
semi-trailers, to
(b)
Revolver Outstandings.
Assignee
- see
Section
15.6.1.
Assignment
Agreement
- see
Section
15.6.1.
Attorney
Costs
means,
with respect to any Person, all reasonable fees and charges of any counsel
to
such Person, the reasonable allocable cost of internal legal services of such
Person, all reasonable disbursements of such internal counsel and all court
costs and similar legal expenses.
Bank
Product Agreements
means
those certain cash management service agreements entered into from time to
time
between any Loan Party and a Lender or its Affiliates in connection with any
of
the Bank Products.
Bank
Product Obligations
means
all obligations, liabilities, contingent reimbursement obligations, fees, and
expenses owing by the Loan Parties to any Lender or its Affiliates pursuant
to
or evidenced by the Bank Product Agreements and irrespective of whether for
the
payment of money, whether direct or indirect, absolute or contingent, due or
to
become due, now existing or hereafter arising, and including all such amounts
that a Loan Party is obligated to reimburse to the Administrative Agent or
any
Lender as a result of the Administrative Agent or such Lender purchasing
participations or executing indemnities or reimbursement obligations with
respect to the Bank Products provided to the Loan Parties pursuant to the Bank
Product Agreements.
Bank
Products
means
any service or facility extended to any Loan Party by any Lender or its
Affiliates including: (a) credit cards, (b) credit card processing services,
(c)
debit cards, (d) purchase cards, (e) ACH transactions, (f) cash management,
including controlled disbursement, accounts or services, or (g) Hedging
Agreements.
Base
Rate
means at
any time the greater of (a) the Federal Funds Rate plus 0.5% and (b)
the
Prime Rate.
Base
Rate Loan
means
any Loan which bears interest at or by reference to the Base Rate.
Base
Rate Margin
- see
the definition of Applicable Margin.
Borrower
means
any and each of the Company, Celadon Trucking Services, Inc. and TruckersB2B,
Inc.
Borrowers
means,
jointly and severally, the Company, Celadon Trucking Services, Inc. and
TruckersB2B, Inc.
BSA
- see
Section
10.4.
Business
Day
means
any day on which LaSalle is open for commercial banking business in Chicago,
Illinois and Indianapolis, Indiana and, in the case of a Business Day which
relates to a LIBOR Loan, on which dealings are carried on in the London
interbank eurodollar market.
Capital
Expenditures
means
all expenditures which, in accordance with GAAP, would be required to be
capitalized and shown on the consolidated balance sheet of the Company,
including expenditures in respect of Capital Leases, but excluding expenditures
made in connection with the replacement, substitution or restoration of assets
to the extent financed (a) from insurance proceeds (or other similar recoveries)
paid on account of the loss of or damage to the assets being replaced or
restored or (b) with awards of compensation arising from the taking by eminent
domain or condemnation of the assets being replaced.
Capital
Lease
means,
with respect to any Person, any lease of (or other agreement conveying the
right
to use) any real or personal property by such Person that, in conformity with
GAAP, is accounted for as a capital lease on the balance sheet of such
Person.
Capital
Securities
means,
with respect to any Person, all shares, interests, participations or other
equivalents (however designated, whether voting or non-voting) of such Person’s
capital, whether now outstanding or issued or acquired after the Closing Date,
including common shares, preferred shares, membership interests in a limited
liability company, limited or general partnership interests in a partnership,
interests in a Trust, interests in other unincorporated organizations or any
other equivalent of such ownership interest.
Cash
Collateralize
means to
deliver cash collateral to the Administrative Agent, to be held as cash
collateral for outstanding Letters of Credit, pursuant to documentation
satisfactory to the Administrative Agent. Derivatives of such term have
corresponding meanings.
Cash
Equivalent Investment
means,
at any time, (a) any evidence of Debt, maturing not more than one year after
such time, issued or guaranteed by the United States Government or any agency
thereof, (b) commercial paper, maturing not more than one year from the date
of
issue, or corporate demand notes, in each case (unless issued by a Lender or
its
holding company) rated at least A-l by Standard & Poor’s Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or P-l by Xxxxx’x Investors Service,
Inc., (c) any certificate of deposit, time deposit or banker’s acceptance,
maturing not more than one year after such time, or any overnight Federal Funds
transaction that is issued or sold by any Lender or its holding company (or
by a
commercial banking institution that is a member of the Federal Reserve System
and has a combined capital and surplus and undivided profits of not less than
$500,000,000), (d) any repurchase agreement entered into with any Lender (or
commercial banking institution of the nature referred to in clause
(c))
which
(i) is secured by a fully perfected security interest in any obligation of
the
type described in any of clauses
(a)
through
(c)
above
and (ii) has a market value at the time such repurchase agreement is entered
into of not less than 100% of the repurchase obligation of such Lender (or
other
commercial banking institution) thereunder and (e) money market accounts or
mutual funds which invest exclusively in assets satisfying the foregoing
requirements, and (f) other short term liquid investments approved in writing
by
the Administrative Agent.
Change
of Control means
(a)
any
Person or group of Persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934 shall acquire beneficial ownership (within
the
meaning of Rule 13d-3 promulgated under such Act) of more than 30% of the
outstanding securities (on a fully diluted basis and taking into account any
securities or contract rights exercisable, exchangeable or convertible into
equity securities) of the Company having voting rights in the election of
directors under normal circumstances; (b) a majority of the members of the
Board
of Directors of the Company shall cease to be Continuing Members;
(c)
the
Company shall cease to, directly or indirectly, own and control the percentage
currently owned in each class of the outstanding Capital Securities of each
Subsidiary (other than Servicios de Transporation Jaguar, SA de CV) as shown
on
Schedule
9.8;
or (d)
the Company or its Subsidiary ceases to own and control at least 51% of each
class of the outstanding Capital Securities of Servicios de Transporation
Jaguar, SA de CV. For purposes of the foregoing, "Continuing
Member"
means a
member of the Board of Directors of the Company who either (i) was a member
of
the Company's Board of Directors on the day before the Closing Date and has
been
such continuously thereafter or (ii) became a member of such Board of Directors
after the day before the Closing Date and whose election or nomination for
election was approved by a vote of the majority of the Continuing Members then
members of the Company's Board of Directors.
Closing
Date
- see
Section
12.1.
Code
means
the Internal Revenue Code of 1986.
Commitment
means,
as to any Lender, such Lender’s commitment to make Loans, and to issue or
participate in Letters of Credit, under this Agreement. The initial amount
of
each Lender’s commitment to make Loans is set forth on Annex
A.
Company
means
Celadon Group, Inc.
Compliance
Certificate
means a
Compliance Certificate in substantially the form of Exhibit
B.
Computation
Period
means
each period of four consecutive Fiscal Quarters ending on the last day of a
Fiscal Quarter.
Consolidated
Net Income
means,
with respect to the Company and its Subsidiaries for any period, the net income
(or loss) of the Company and its Subsidiaries for such period, excluding
any
extraordinary gains and any gains from discontinued operations.
Contingent
Liability
means,
with respect to any Person, each obligation and liability of such Person and
all
such obligations and liabilities of such Person incurred pursuant to any
agreement, undertaking or arrangement by which such Person: (a) guarantees,
endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment,
to
supply funds to, or otherwise to invest in, a debtor, or otherwise to assure
a
creditor against loss) the indebtedness, dividend, obligation or other liability
of any other Person in any manner (other than by endorsement of instruments
in
the course of collection), including any indebtedness, dividend or other
obligation which may be
issued
or
incurred at some future time; (b) guarantees the payment of dividends or other
distributions upon the Capital Securities of any other Person; (c) undertakes
or
agrees (whether contingently or otherwise): (i) to purchase, repurchase, or
otherwise acquire any indebtedness, obligation or liability of any other Person
or any property or assets constituting security therefor, (ii) to advance or
provide funds for the payment or discharge of any indebtedness, obligation
or
liability of any other Person (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain solvency, assets,
level of income, working capital or other financial condition of any other
Person, or (iii) to make payment to any other Person other than for value
received; (d) agrees to lease property or to purchase securities, property
or
services from such other Person with the purpose or intent of assuring the
owner
of such indebtedness or obligation of the ability of such other Person to make
payment
of the
indebtedness or obligation; (e) to induce the issuance of, or in connection
with
the issuance of, any letter of credit for the benefit of such other Person;
or
(f) undertakes or agrees otherwise to assure a creditor against loss. The amount
of any Contingent Liability shall (subject to any limitation set forth herein)
be deemed to be the outstanding principal amount (or maximum permitted principal
amount, if larger) of the indebtedness, obligation or other liability guaranteed
or supported thereby.
Controlled
Group
means
all members of a controlled group of corporations, all members of a controlled
group of trades or businesses (whether or not incorporated) under common control
and all members of an affiliated service group which, together with the Company
or any of its Subsidiaries, are treated as a single employer under Section
414
of the Code or Section 4001 of ERISA.
Debt
of any
Person means, without duplication, (a) all indebtedness of such Person, (b)
all
borrowed money of such Person, whether or not evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person as lessee
under
Capital Leases which have been or should be recorded as liabilities on a balance
sheet of such Person in accordance with GAAP, (d) all obligations of such Person
to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business), (e) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person; provided
that if
such Person has not assumed or otherwise become liable for such indebtedness,
such indebtedness shall be measured at the fair market value of such property
securing such indebtedness at the time of determination, (f) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn), bankers’ acceptances and similar obligations
issued for the account of such Person (including the Letters of Credit), (g)
all
Hedging Obligations of such Person, (h) all Contingent Liabilities of such
Person, (i) all Debt of any partnership of which such Person is a general
partner and (j) any Capital Securities or other equity instrument, whether
or
not mandatorily redeemable, that under GAAP is characterized as debt, whether
pursuant to financial accounting standards board issuance No. 150 or
otherwise.
Debt
to be Repaid
means
Debt listed on Schedule
12.1.
Designated
Proceeds
- see
Section
6.2.2(a).
Dollar
and the
sign “$”
mean
lawful money of the United States of America.
EBIT
means,
for any period, Consolidated Net Income for such period plus,
to the
extent deducted in determining Consolidated Net Income, Interest Expense, and
income tax for such period.
EBITDAR
means,
for any period, Consolidated Net Income for such period plus,
to the
extent deducted in determining Consolidated Net Income, Interest Expense, income
tax expense, depreciation and amortization and Rent Expense for such
period.
Environmental
Claims
means
all claims, however asserted, by any governmental, regulatory or judicial
authority or other Person alleging potential liability or responsibility for
violation of any Environmental Law, or for release or injury to the
environment.
Environmental
Laws
means
all present or future federal, state or local laws, statutes, common law duties,
rules, regulations, ordinances and codes, together with all administrative
or
judicial orders, consent agreements, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any governmental authority,
in each case relating to any matter arising out of or relating to public health
and safety, or pollution or protection of the environment or workplace,
including any of the foregoing relating to the presence, use, production,
generation, handling, transport, treatment, storage, disposal, distribution,
discharge, emission, release, threatened release, control or cleanup of any
Hazardous Substance.
ERISA
means
the Employee Retirement Income Security Act of 1974.
Event
of Default
means
any of the events described in Section
13.1.
Excluded
Taxes
means
taxes based upon, or measured by, the Lender’s or Administrative Agent’s (or a
branch of the Lender’s or Administrative Agent’s) overall net income, overall
net receipts, or overall net profits (including franchise taxes imposed in
lieu
of such taxes), but only to the extent such taxes are imposed by a taxing
authority (a) in a jurisdiction in which such Lender or Administrative Agent
is
organized, (b) in a jurisdiction which the Lender’s or Administrative Agent’s
principal office is located, or (c) in a jurisdiction in which such Lender’s or
Administrative Agent’s lending office (or branch) in respect of which payments
under this Agreement are made is located.
Exempt
Foreign Subsidiary
means as
of any date of determination, a non-U.S. Subsidiary which the Required Lenders
have agreed, in writing, prior to such date, to exempt from the requirements
of
executing and delivering a Guaranty. As of the Closing Date, Celadon Mexicana,
S.A. de C.V. is the sole Exempt Foreign Subsidiary.
Federal
Funds Rate
means,
for any day, a fluctuating interest rate equal for each day during such period
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative
Agent. The Administrative Agent’s determination of such rate shall be binding
and conclusive absent manifest error.
Fiscal
Quarter
means a
fiscal quarter of a Fiscal Year.
Fiscal
Year
means
the fiscal year of the Company and its Subsidiaries, which period shall be
the
12-month period ending on the Company’s Fiscal Year end of each year. References
to a Fiscal Year with a number corresponding to any calendar year (e.g.,
“Fiscal
Year 2003”)
refer
to the Fiscal Year ending on the Company’s Fiscal Year end of such calendar
year.
Fixed
Charge Coverage Ratio
means,
with respect to the Company and its Subsidiaries on a consolidated basis for
any
Computation Period, the ratio of (a) the sum for such period of (i) EBIT
plus
(ii)
Rent Expense, to
(b) the
sum for such period of (i) Interest Expense plus
(ii)
Rent Expense
FRB
means
the Board of Governors of the Federal Reserve System or any successor
thereto.
Funded
Debt
means,
as to any Person, all Debt of such Person that matures more than one year from
the date of its creation (or is renewable or extendible, at the option of such
Person, to a date more than one year from such date).
GAAP
means
generally accepted accounting principles set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board (or agencies with similar functions
of
comparable stature and authority within the U.S. accounting profession) and
the
Securities and Exchange Commission, which are applicable to the circumstances
as
of the date of determination.
Group
- see
Section
2.2.1.
Guaranty
means
the Guaranty dated as of the date hereof executed and delivered by each
Subsidiary of the Company (except for the Borrowers and Restricted
Subsidiaries), together with any joinders thereto and any other guaranty
executed by a Loan Party, in each case in form and substance satisfactory to
the
Administrative Agent.
Hazardous
Substances
means
(a) any petroleum or petroleum products, radioactive materials, asbestos
in
any form that is or could become friable, urea formaldehyde foam insulation,
dielectric fluid containing levels of polychlorinated biphenyls, radon gas
and
mold; (b) any chemicals, materials, pollutant or substances defined
as or
included in the definition of “hazardous substances”, “hazardous waste”,
“hazardous materials”, “extremely hazardous substances”, “restricted hazardous
waste”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants” or
words of similar import, under any applicable Environmental Law; and
(c) any other chemical, material or substance, the exposure to, or release
of which is prohibited, limited or regulated by any governmental authority
or
for which any duty or standard of care is imposed pursuant to, any Environmental
Law.
Hedging
Agreement
means
any interest rate, currency or commodity swap agreement, cap agreement or collar
agreement, and any other agreement or arrangement designed to protect a Person
against fluctuations in interest rates, currency exchange rates or commodity
prices.
Hedging
Obligation
means,
with respect to any Person, any liability of such Person under any Hedging
Agreement. The amount of any Person’s obligation in respect of any Hedging
Obligation shall be deemed to be the incremental obligation that would be
reflected in the financial statements of such Person in accordance with
GAAP.
Indemnified
Liabilities
- see
Section
15.16.
Interest
Expense
means
for any period the consolidated interest expense of the Company and its
Subsidiaries for such period (including all imputed interest on Capital
Leases).
Interest
Period
means,
as to any LIBOR Loan, the period commencing on the date such Loan is borrowed
or
continued as, or converted into, a LIBOR Loan and ending on the date one, two,
three or six months thereafter as selected by the Borrowers pursuant to
Section
2.2.2
or
2.2.3,
as the
case may be; provided
that:
(a) if
any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the following Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the preceding
Business Day;
(b) any
Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period
shall
end on the last Business Day of the calendar month at the end of such Interest
Period; and
(c) the
Borrowers may not select any Interest Period for a Revolving Loan which would
extend beyond the scheduled Termination Date.
Investment
means,
with respect to any Person, any investment in another Person, whether by
acquisition of any debt or Capital Security, by making any loan or advance,
by
becoming obligated with respect to a Contingent Liability in respect of
obligations of such other Person (other than travel and similar advances to
employees in the ordinary course of business) or by making an
Acquisition.
Issuing
Lender
means
LaSalle, in its capacity as the issuer of Letters of Credit hereunder, or any
Affiliate of LaSalle that may from time to time issue Letters of Credit, and
their successors and assigns in such capacity.
LaSalle
- see
the Preamble.
L/C
Application
means,
with respect to any request for the issuance of a Letter of Credit, a letter
of
credit application in the form being used by the Issuing Lender at the time
of
such request for the type of letter of credit requested.
L/C
Fee Rate
- see
the definition of Applicable Margin.
Lease-Adjusted
Total Debt
means
Total Debt plus
Operating Lease Obligations.
Lease-Adjusted
Total Debt to EBITDAR Ratio
means,
as of the last day of any Fiscal Quarter, the ratio of (a) Lease-Adjusted Total
Debt as of such day, to
(b)
EBITDAR for the Computation Period ending on such day.
Lender
- see
the Preamble.
References to the “Lenders” shall include the Issuing Lender; for purposes of
clarification only, to the extent that LaSalle (or any successor Issuing Lender)
may have any rights or obligations in addition to those of the other Lenders
due
to its status as Issuing Lender, its status as such will be specifically
referenced.
Lender
Party
- see
Section
15.17.
Letter
of Credit
- see
Section
2.1.2.
LIBOR
Loan
means
any Loan which bears interest at a rate determined by reference to the LIBOR
Rate.
LIBOR
Margin
- see
the definition of Applicable Margin.
LIBOR
Office
means
with respect to any Lender the office or offices of such Lender which shall
be
making or maintaining the LIBOR Loans of such Lender hereunder. A LIBOR Office
of any Lender may be, at the option of such Lender, either a domestic or foreign
office.
LIBOR
Rate
means a
rate of interest equal to (a) the per annum rate of interest at which United
States dollar deposits in an amount comparable to the amount of the relevant
LIBOR Loan and for a period equal to the relevant Interest Period are offered
in
the London Interbank Eurodollar market at 11:00 A.M. (London time) two (2)
Business Days prior to the commencement of such Interest Period (or three (3)
Business Days prior to the commencement of such Interest Period if banks in
London, England were not open and dealing in offshore United States dollars
on
such second preceding Business Day), as displayed in the Bloomberg
Financial Markets
system
(or other authoritative source selected by the Administrative Agent in its
sole
discretion) or, if the Bloomberg
Financial Markets
system
or another authoritative source is not available, as the LIBOR Rate is otherwise
determined by the Administrative Agent in its sole and absolute discretion,
divided by (b) a number determined by subtracting from 1.00 the then stated
maximum reserve percentage for determining reserves to be maintained by member
banks of the Federal Reserve System for Eurocurrency funding or liabilities
as
defined in Regulation D (or any successor category of liabilities under
Regulation D), such rate to remain fixed for such Interest Period. The
Administrative Agent’s determination of the LIBOR Rate shall be conclusive,
absent manifest error.
Lien
means,
with respect to any Person, any interest granted by such Person in any real
or
personal property, asset or other right owned or being purchased or acquired
by
such Person (including an interest in respect of a Capital Lease) which secures
payment or performance of any obligation and shall include any mortgage, lien,
encumbrance, title retention lien, charge or other security interest of any
kind, whether arising by contract, as a matter of law, by judicial process
or
otherwise.
Loan
Documents
means
this Agreement, the Notes, the Letters of Credit, the Master Letter of Credit
Agreement, the L/C Applications, the Agent Fee Letter, the Guaranty, any
Subordination Agreements and all documents, instruments and agreements delivered
in connection with the foregoing.
Loan
Party
means
the Borrowers and each Subsidiary of the Company (other than Restricted
Subsidiaries).
Loan
or Loans
means,
as the context may require, Revolving Loans and/or Swing Line
Loans.
Mandatory
Prepayment Event
- see
Section
6.2.2(a).
Margin
Stock
means
any “margin stock” as defined in Regulation U.
Master
Letter of Credit Agreement
means,
at any time, with respect to the issuance of Letters of Credit, a master letter
of credit agreement or reimbursement agreement in the form, if any, being used
by the Issuing Lender at such time.
Material
Adverse Effect
means
(a) a material adverse change in, or a material adverse effect upon, the
financial condition, operations, assets, business, properties or prospects
of
the Loan Parties taken as a whole, (b) a material impairment of the ability
of
any Loan Party to perform any of the Obligations under any Loan Document or
(c)
a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document.
Multiemployer
Pension Plan
means a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the
Company or any other member of the Controlled Group may have any
liability.
Net
Worth
means,
as of any date, the sum of the capital stock and additional paid-in capital
plus
retained earnings (or minus accumulated deficit) calculated in conformity with
GAAP.
Non-U.S.
Participant
- see
Section
7.6(d).
Non-Use
Fee Rate
- see
the definition of Applicable Margin.
Note
means a
promissory note substantially in the form of Exhibit
A.
Notice
of Borrowing
- see
Section
2.2.2.
Notice
of Conversion/Continuation
- see
Section
2.2.3.
Obligations
means
all obligations (monetary (including post-petition interest, allowed or not)
or
otherwise) of any Loan Party under this Agreement and any other Loan Document
including Attorney Costs and any reimbursement obligations of each Loan Party
in
respect of Letters of Credit and surety bonds, all Hedging Obligations permitted
hereunder which are owed to any Lender or its Affiliate or Administrative Agent,
and all Bank Products Obligations, all in each case howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due.
OFAC
- see
Section
10.4.
Operating
Lease
means
any lease of (or other agreement conveying the right to use) any real or
personal property by any Loan Party, as lessee, other than any Capital
Lease.
Operating
Lease Obligations
means,
as at any date of determination, the amount obtained by aggregating the present
values, determined in the case of each particular Operating Lease by applying
a
discount rate of 10% from the date on which each fixed lease payment is due
under such Operating Lease to such date of determination, of all fixed lease
payments due under all Operating Leases of the Company and its
Subsidiaries.
PBGC
means
the Pension Benefit Guaranty Corporation and any entity succeeding to any or
all
of its functions under ERISA.
Participant
- see
Section
15.6.2.
Pension
Plan
means a
“pension plan”, as such term is defined in Section 3(2) of ERISA, which is
subject to Title IV of ERISA or the minimum funding standards of ERISA (other
than a Multiemployer Pension Plan), and as to which the Company or any member
of
the Controlled Group may have any liability, including any liability by reason
of having been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of being deemed
to be a contributing sponsor under Section 4069 of ERISA.
Permitted
Lien
means a
Lien expressly permitted hereunder pursuant to Section
11.2.
Person
means
any natural person, corporation, partnership, trust, limited liability company,
association, governmental authority or unit, or any other entity, whether acting
in an individual, fiduciary or other capacity.
Prime
Rate
means,
for any day, the rate of interest in effect for such day as publicly announced
from time to time by the Administrative Agent as its prime rate (whether or
not
such rate is actually charged by the Administrative Agent), which is not
intended to be the Administrative Agent’s lowest or most favorable rate of
interest at any one time. Any change in the Prime Rate announced by the
Administrative Agent shall take effect at the opening of
business
on the day specified in the public announcement of such change; provided
that the
Administrative Agent shall not be obligated to give notice of any change in
the
Prime Rate.
Pro
Rata Share
means
with respect to a Lender’s obligation to make Revolving Loans, participate in
Letters of Credit, reimburse the Issuing Lender, receive payments of principal,
interest, fees, costs, and expenses with respect thereto, and with respect
to
all other matters as to a particular Lender, (a) prior to the Revolving
Commitment being terminated or reduced to zero, the percentage obtained by
dividing (i) such Lender’s Revolving Commitment, by (ii) the aggregate Revolving
Commitment of all Lenders and (b) from and after the time the Revolving
Commitment has been terminated or reduced to zero, the percentage obtained
by
dividing (i) the aggregate unpaid principal amount of such Lender’s Revolving
Outstandings (after settlement and repayment of all Swing Line Loans by the
Lenders) by (ii) the aggregate unpaid principal amount of all Revolving
Outstandings.
Refunded
Swing Line Loan
-
see
Section 2.2.4(c).
Regulation
D
means
Regulation D of the FRB.
Regulation
U
means
Regulation U of the FRB.
Rent
Expense
means
for any period the consolidated rent expense of the Company and its Subsidiaries
for such period.
Replacement
Lender
- see
Section
8.7(b).
Reportable
Event
means a
reportable event as defined in Section 4043 of ERISA and the regulations issued
thereunder as to which the PBGC has not waived the notification requirement
of
Section 4043(a), or the failure of a Pension Plan to meet the minimum funding
standards of Section 412 of the Code (without regard to whether the Pension
Plan
is a plan described in Section 4021(a)(2) of ERISA) or under Section 302 of
ERISA.
Required
Lenders
means,
at any time, Lenders whose Pro Rata Shares exceed 51% as determined pursuant
to
the definition of “Pro Rata Share”, or, at any time there are only 2 Lenders,
means all Lenders.
Restricted
Subsidiary
means
(a) as of any date of determination, a Subsidiary of the Company which (i)
is
inactive as of such date and has total assets of less than $10,000 as of such
date, determined in accordance with GAAP, or (ii) is an Exempt Foreign
Subsidiary; provided,
however,
if any
entity identified in clause (i) above hereafter becomes active or acquires
total
assets of $10,000 or more, such entity shall cease to be a Restricted
Subsidiary, and (b) Zipp Realty, LLC for so long as it is a single asset purpose
entity.
Revolving
Commitment
means
$50,000,000, as reduced from time to time pursuant to Section
6.1
or
increased from time to time pursuant to Section
6.4.
Revolving
Loan -
see
Section
2.1.1.
Revolving
Outstandings
means,
at any time, the sum of (a) the aggregate principal amount of all outstanding
Revolving Loans, plus (b) the Stated Amount of all Letters of
Credit.
SEC
means
the Securities and Exchange Commission or any other governmental authority
succeeding to any of the principal functions thereof.
Senior
Debt
means
all Debt of the Company and its Subsidiaries other than Subordinated
Debt.
Senior
Officer
means,
with respect to any Loan Party, any of the chief executive officer, the chief
financial officer, the chief operating officer or the treasurer of such Loan
Party.
Stated
Amount
means,
with respect to any Letter of Credit at any date of determination, (a) the
maximum aggregate amount available for drawing thereunder under any and all
circumstances plus (b) the aggregate amount of all unreimbursed payments and
disbursements under such Letter of Credit.
Subordinated
Debt
means
any unsecured Debt of the Company which has subordination terms, covenants,
pricing and other terms which have been approved in writing by the Required
Lenders.
Subordinated
Debt Documents
means
all documents and instruments relating to the Subordinated Debt and all
amendments and modifications thereof approved by the Administrative
Agent.
Subordination
Agreements
means
all subordination agreements executed by a holder of Subordinated Debt in favor
of the Administrative Agent and the Lenders from time to time after the Closing
Date in form and substance and on terms and conditions satisfactory to
Administrative Agent.
Subsidiary
means,
with respect to any Person, a corporation, partnership, limited liability
company or other entity of which such Person owns, directly or indirectly,
such
number of outstanding Capital Securities as have more than 50% of the ordinary
voting power for the election of directors or other managers of such
corporation, partnership, limited liability company or other entity. Unless
the
context otherwise requires, each reference to Subsidiaries herein shall be
a
reference to Subsidiaries of the Company.
Swing
Line Availability
means
the lesser of (a) the Swing Line Commitment Amount and (b) Revolving Commitment
(less Revolving Outstandings at such time).
Swing
Line Commitment Amount
means
$5,000,000, as reduced from time to time pursuant to Section
6.1,
which
commitment constitutes a subfacility of the Revolving Commitment of the Swing
Line Lender.
Swing
Line Lender
means
LaSalle.
Swing
Line Loan
- see
Section
2.2.4.
Tangible
Net Worth
of any
Person means an amount equal to: (a) Net Worth of such Person; less
(b) the
sum of goodwill, patents, trademarks, prepaid expenses, deposits, deferred
charges and other personal property which is classified as intangible property
in accordance with GAAP.
Taxes
means
any and all present and future taxes, duties, levies, imposts, deductions,
assessments, charges or withholdings, and any and all liabilities (including
interest and penalties and other additions to taxes) with respect to the
foregoing, but excluding Excluded Taxes.
Termination
Date
means
the earlier to occur of (a) September 24, 2010 or (b) such other date on which
the Commitments terminate pursuant to Section 6
or
Section
13.
Termination
Event
means,
with respect to a Pension Plan that is subject to Title IV of ERISA, (a) a
Reportable Event, (b) the withdrawal of Company or any other member of the
Controlled Group from such Pension Plan during a plan year in which Company
or
any other member of the Controlled Group was a “substantial employer” as defined
in Section 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of
ERISA, (c) the termination of such Pension Plan, the filing of a notice of
intent to terminate the Pension Plan or the treatment of an amendment of such
Pension Plan as a termination under Section 4041 of ERISA, (d) the institution
by the PBGC of proceedings to terminate such Pension Plan or (e) any event
or
condition that might constitute grounds under Section 4042 of ERISA for the
termination of, or appointment of a trustee to administer, such Pension
Plan.
Total
Debt
means
all Debt of the Company and its Subsidiaries, determined on a consolidated
basis, excluding (a) contingent obligations in respect of Contingent Liabilities
(except to the extent constituting Contingent Liabilities in respect of Debt
of
a Person other than any Loan Party), (b) Hedging Obligations, and (c) Debt
of
the Company to Subsidiaries and Debt of Subsidiaries to the Company or to other
Subsidiaries.
Total
Plan Liability
means,
at any time, the present value of all vested and unvested accrued benefits
under
all Pension Plans, determined as of the then most recent valuation date for
each
Pension Plan, using PBGC actuarial assumptions for single employer plan
terminations.
type
- see
Section
2.2.1.
Unfunded
Liability
means
the amount (if any) by which the present value of all vested and unvested
accrued benefits under all Pension Plans exceeds the fair market value of all
assets allocable to those benefits, all determined as of the then most recent
valuation date for each Pension Plan, using PBGC actuarial assumptions for
single employer plan terminations.
Unmatured
Event of Default
means
any event that, if it continues uncured, will, with lapse of time or notice
or
both, constitute an Event of Default.
Withholding
Certificate
- see
Section
7.6(d).
Wholly-Owned
Subsidiary
means,
as to any Person, a Subsidiary all of the Capital Securities of which (except
directors’ qualifying Capital Securities) are at the time directly or indirectly
owned by such Person and/or another Wholly-Owned Subsidiary of such
Person.
1.2 Other
Interpretive Provisions.
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) Section,
Annex,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The
term
“including” is not limiting and means “including without
limitation.”
(d) In
the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including”; the words “to” and “until” each mean
“to but excluding”, and the word “through” means “to and
including.”
(e) Unless
otherwise expressly provided herein, (i) references to agreements
(including this Agreement and the other Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
supplements and other modifications thereto, but only to the extent such
amendments, restatements, supplements and other modifications are not prohibited
by the terms of any Loan Document, and (ii) references to any statute
or
regulation shall be construed as including all statutory and regulatory
provisions amending, replacing, supplementing or interpreting such statute
or
regulation.
(f) This
Agreement and the other Loan Documents may use several different limitations,
tests or measurements to regulate the same or similar matters. All such
limitations, tests and measurements are cumulative and each shall be performed
in accordance with its terms.
(g) This
Agreement and the other Loan Documents are the result of negotiations among
and
have been reviewed by counsel to the Administrative Agent, the Borrowers, the
Lenders and the other parties thereto and are the products of all parties.
Accordingly, they shall not be construed against the Administrative Agent or
the
Lenders merely because of the Administrative Agent’s or Lenders’ involvement in
their preparation.
SECTION
2 COMMITMENTS
OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT
PROCEDURES
2.1 Commitments.
On
and
subject to the terms and conditions of this Agreement, each of the Lenders,
severally and for itself alone, agrees to make loans to, and to issue or
participate in letters of credit for the account of, the Borrowers as
follows:
2.1.1 Revolving
Loan Commitment.
Each
Lender with a Revolving Loan Commitment agrees to make loans on a revolving
basis (“Revolving
Loans”)
from
time to time until the Termination Date in such Lender’s Pro Rata Share of such
aggregate amounts as the Borrowers may request from all Lenders; provided
that the
Revolving Outstandings will not at any time exceed Revolving Commitment (less
the amount of any Swing Line Loans outstanding at such time).
2.1.2 L/C
Commitment.
Subject
to Section
2.3.1,
the
Issuing Lender agrees to issue letters of credit, in each case containing such
terms and conditions as are permitted by this Agreement and are reasonably
satisfactory to the Issuing Lender (each, a “Letter
of Credit”),
at
the request of and for the account of the Borrowers from time to time before
the
scheduled Termination Date and, as more fully set forth in Section 2.3.2,
each
Lender agrees to purchase a participation in each such Letter of Credit;
provided
that (a)
the aggregate Stated Amount of all Letters of Credit shall not at any time
exceed $15,000,000 and (b) the Revolving Outstandings shall not at any
time
exceed Revolving Commitment (less the amount of any Swing Line Loans outstanding
at such time).
2.2 Loan
Procedures.
2.2.1 Various
Types of Loans.
Each
Revolving Loan shall be either a Base Rate Loan or a LIBOR Loan (each a
“type”
of
Loan), as the Company, as agent for the Borrowers, shall specify in the related
notice of borrowing or conversion pursuant to Section 2.2.2
or 2.2.3.
LIBOR
Loans having the same Interest Period which expire on the same day are sometimes
called a “Group”
or
collectively “Groups”.
Base
Rate Loans and LIBOR Loans may be outstanding at the same time, provided
that not
more than 5 different Groups of LIBOR Loans shall be outstanding at any one
time. All borrowings, conversions and repayments of Revolving Loans shall be
effected so that each Lender will have a ratable share (according to its Pro
Rata Share) of all types and Groups of Loans.
2.2.2 Borrowing
Procedures.
The
Company, as agent for the Borrowers, shall give written notice (each such
written notice, a “Notice
of Borrowing”)
substantially in the form of Exhibit
E
or
telephonic notice (followed immediately by a Notice of Borrowing) to the
Administrative Agent of each proposed borrowing not later than (a) in
the
case of a Base Rate borrowing, 11:00 A.M., Chicago time, on the proposed
date of such borrowing, and (b) in the case of a LIBOR borrowing,
11:00 A.M., Chicago time, at least three Business Days prior to the
proposed date of such borrowing. Each such notice shall be effective upon
receipt by the Administrative Agent, shall be irrevocable, and shall specify
the
date, amount and type of borrowing and, in the case of a LIBOR borrowing, the
initial Interest Period therefor. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Not later than 1:00
P.M.,
Chicago time, on the date of a proposed borrowing, each Lender shall provide
the
Administrative Agent at the office specified by the Administrative Agent with
immediately available funds covering such Lender’s Pro Rata Share of such
borrowing and, so long as the Administrative Agent has not received written
notice that the conditions precedent set forth in Section 11
with
respect to such borrowing have not been satisfied, the Administrative Agent
shall pay over the funds received by the Administrative Agent to the Borrowers
on the requested borrowing date. Each borrowing shall be on a Business Day.
Each
Base Rate borrowing shall
be
in an
aggregate amount of at least $1,000,000 and an integral multiple of $100,000,
and each LIBOR borrowing shall be in an aggregate amount of at least $1,000,000
and an integral multiple of at least $100,000.
2.2.3 Conversion
and Continuation Procedures.
(a) Each
LIBOR Loan shall automatically renew for the Interest Period specified in the
initial notice received by the Administrative Agent pursuant to Section 2.2.2,
at the then current LIBOR Rate unless the Company, as agent for the Borrowers,
pursuant to a subsequent notice received by the Administrative Agent, shall
elect a different Interest Period or the conversion of all or a portion of
such
LIBOR Loan to a Base Rate Loan.
Each
Interest Period occurring after the initial Interest Period with respect to
any
LIBOR Loan shall commence on the same day of each applicable month as the first
day of the initial Interest Period. Whenever the last day of any Interest Period
with respect to any LIBOR Loan 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. Whenever an Interest Period with respect
to
any LIBOR Loan would otherwise end on a day of a month for which there is no
numerically corresponding day in the calendar month, such Interest Period shall
end on the last day of such calendar month, unless such day is not a Business
Day, in which event such Interest Period shall be extended to end on the next
Business Day. Upon
receipt by the Administrative Agent of such subsequent notice, the Borrowers
may, subject to the terms and conditions of this Agreement, elect, as of the
last day of the applicable Interest Period, to continue any LIBOR Loan having
an
Interest Period expiring on such day for a new Interest Period, or to convert
any such LIBOR Loan to a Base Rate Loan. Such notice shall, in the case of
a
conversion to a Base Rate Loan, be given before 11:00 a.m., Chicago time, on
the
proposed date of such conversion, and in the case of conversion to a LIBOR
Loan
having a different Interest Period, be given before 11:00 a.m., Chicago time,
at
least three Business Days prior to the proposed date of such conversion,
specifying: (i) the proposed date of conversion; (ii) the aggregate amount
of
Loans to be converted; (iii) the type of Loans resulting from the proposed
conversion; and (iv) in the case of conversion to a LIBOR Loan, the duration
of
the requested Interest Period therefor. The
Borrowers may not elect a LIBOR Rate, and an Interest Period for a LIBOR Loan
shall not automatically renew, with respect to any principal amount which is
scheduled to be repaid before the last day of the applicable Interest Period,
and any such amounts shall bear interest at the Base Rate plus
the
Applicable Margin until repaid in the case of conversion into, or continuation
of, LIBOR Loans, the duration of the requested Interest Period
therefor.
(b) The
Administrative Agent will promptly notify each Lender of its receipt of a notice
of conversion or continuation pursuant to this Section
2.2.3
or, if
no timely notice is provided by the Company, of the details of any automatic
conversion or continuation.
(c) Any
conversion of a LIBOR Loan on a day other than the last day of an Interest
Period therefor shall be subject to Section
8.4.
2.2.4 Swing
Line Facility.
(a) Subject
to the terms and conditions hereof, the Swing Line Lender may, in its sole
discretion, make available from time to time until the Termination Date advances
(each, a “Swing
Line Loan”)
in
accordance with a Notice of Borrowing sent by the Company, as agent for the
Borrowers, notwithstanding that after making a requested Swing Line Loan, the
sum of the Swing Line Lender’s Pro Rata Share of the Revolving Outstanding and
all outstanding Swing Line Loans, may exceed the Swing Line Lender’s Pro Rata
Share of the Revolving Commitment. The provisions of this Section
2.2.4
shall
not relieve Lenders of their obligations to make Revolving Loans under
Section
2.1.1;
provided
that if
the Swing Line Lender makes a Swing Line Loan pursuant to any such notice,
such
Swing Line Loan shall be in lieu of any Revolving Loan that otherwise may be
made by the Lenders pursuant to such notice. The aggregate amount of Swing
Line
Loans outstanding shall not exceed at any time Swing Line Availability. Until
the Termination Date, the Borrowers may from time to time borrow, repay and
reborrow under this Section
2.2.4.
Each
Swing Line Loan shall be made pursuant to a Notice of Borrowing delivered by
the
Company, as agent for the Borrowers, to the Administrative Agent in accordance
with Section
2.2.2.
Any
such notice must be given no later than 2:00 P.M., Chicago time, on the Business
Day of the proposed Swing Line Loan. Unless the Swing Line Lender has received
at least one Business Day’s prior written notice from the Required Lenders
instructing it not to make a Swing Line Loan, the Swing Line Lender shall,
notwithstanding the failure of any condition precedent set forth in Section
12.2,
be
entitled to fund that Swing Line Loan, and to have such Lender make Revolving
Loans in accordance with Section
2.2.4(c)
or
purchase participating interests in accordance with Section
2.2.4(d).
Notwithstanding any other provision of this Agreement or the other Loan
Documents, each Swing Line Loan shall constitute a Base Rate Loan. The Borrowers
shall repay the aggregate outstanding principal amount of each Swing Line Loan
upon demand therefor by the Administrative Agent. Each Swing Line Loan shall
be
in an aggregate amount of at least $100,000 and an integral multiple of
$100,000
(b) The
entire unpaid balance of each Swing Line Loan and all other noncontingent
Obligations shall be immediately due and payable in full in immediately
available funds on the Termination Date if not sooner paid in full.
(c) The
Swing
Line Lender, at any time and from time to time, may on behalf of the Borrowers
(and the Borrowers hereby irrevocably authorize the Swing Line Lender to so
act
on its behalf) request each Lender with a Revolving Commitment (including the
Swing Line Lender) to make a Revolving Loan to the Borrowers (which shall be
a
Base Rate Loan) in an amount equal to that Lender’s Pro Rata Share of the
principal amount of all Swing Line Loans (the “Refunded
Swing Line Loan”)
outstanding on the date such notice is given. Unless any of the events described
in Section
13.1.4
has
occurred (in which event the procedures of Section
2.2.4(d)
shall
apply) and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Loan are
then
satisfied, each Lender shall disburse directly to the Administrative Agent,
its
Pro Rata Share on behalf of the Swing Line Lender, prior to 2:00 P.M., Chicago
time, in immediately available funds on the date that notice is given
(provided
that
such notice is given by 12:00 p.m., Chicago time, on such date). The proceeds
of
those Revolving Loans shall be immediately paid to the Swing Line Lender and
applied to repay the Refunded Swing Line Loan.
(d) If,
prior
to refunding a Swing Line Loan with a Revolving Loan pursuant to Section
2.2.4(c),
one of
the events described in Section
13.1.4
has
occurred, then, subject to the provisions of Section
2.2.4(e)
below,
each Lender shall, on the date such Revolving Loan was to have been made for
the
benefit of the Borrowers, purchase from the Swing Line Lender an undivided
participation interest in the Swing Line Loan in an amount equal to its Pro
Rata
Share of such Swing Line Loan. Upon request, each Lender shall promptly transfer
to the Swing Line Lender, in immediately available funds, the amount of its
participation interest.
(e) Each
Lender’s obligation to make Revolving Loans in accordance with Section
2.2.4(c)
and to
purchase participation interests in accordance with Section
2.2.4(d)
shall be
absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that
such Lender may have against the Swing Line Lender, the Borrowers or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of any
Unmatured Event of Default or Event of Default; (iii) any inability of a
Borrower to satisfy the conditions precedent to borrowing set forth in this
Agreement at any time or (iv) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. If and to the extent
any Lender shall not have made such amount available to the Administrative
Agent
or the Swing Line Lender, as applicable, by 2:00 P.M., Chicago time, the amount
required pursuant to Sections
2.2.4(c) or 2.2.4(d),
as the
case may be, on the Business Day on which such Lender receives notice from
the
Administrative Agent of such payment or disbursement (it being understood that
any such notice received after noon, Chicago time, on any Business Day shall
be
deemed to have been received on the next following Business Day), such Lender
agrees to pay interest on such amount to the Administrative Agent for the Swing
Line Lender’s account forthwith on demand, for each day from the date such
amount was to have been delivered to the Administrative Agent to the date such
amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter,
the Base Rate from time to time in effect.
2.3 Letter
of Credit Procedures.
2.3.1 L/C
Applications.
The
Borrowers shall execute and deliver to the Issuing Lender the Master Letter
of
Credit Agreement from time to time in effect. The Company, as agent for the
Borrowers, shall give notice to the Administrative Agent and the Issuing Lender
of the proposed issuance of each Letter of Credit by 11:00 A.M., Chicago time,
on a Business Day which is at least three Business Days (or such lesser number
of days as the Administrative Agent and the Issuing Lender shall agree in any
particular instance in their sole discretion) prior to the
proposed
date of issuance of such Letter of Credit. Each such notice shall be accompanied
by an L/C Application, duly executed by the Borrowers and in all respects
satisfactory to the Administrative Agent and the Issuing Lender, together with
such other documentation as the Administrative Agent or the Issuing Lender
may
request in support thereof, it being understood that each L/C Application shall
specify, among other things, the date on which the proposed Letter of Credit
is
to be issued (which must be a Business Day), the expiration date of such Letter
of Credit (which shall not be later than the earlier of twelve (12) months
from
the date of issuance or 5 Business Days prior to the scheduled Termination
Date
(unless such Letter of Credit is Cash Collateralized)) and whether such Letter
of Credit is to be transferable in whole or in part. Any Letter of Credit
outstanding after the scheduled Termination Date which is Cash Collateralized
for the benefit of the Issuing Lender shall be the sole responsibility of the
Issuing Lender. So long as the Issuing Lender has not received written notice
that the conditions precedent set forth in Section
12
with
respect to the issuance of such Letter of Credit have not been satisfied, the
Issuing Lender shall issue such Letter of Credit on the requested issuance
date.
The Issuing Lender shall promptly advise the Administrative Agent of the
issuance of each Letter of Credit and of any amendment thereto, extension
thereof or event or circumstance changing the amount available for drawing
thereunder. In the event of any inconsistency between the terms of the Master
Letter of Credit Agreement, any L/C Application and the terms of this Agreement,
the terms of this Agreement shall control.
2.3.2 Participations
in Letters of Credit.
Concurrently with the issuance of each Letter of Credit, the Issuing Lender
shall be deemed to have sold and transferred to each Lender with a Revolving
Loan Commitment, and each such Lender shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent
of
such Lender’s Pro Rata Share, in such Letter of Credit and the Borrowers’
reimbursement obligations with respect thereto. If the Borrowers do not pay
any
reimbursement obligation when due, the Borrowers shall be deemed to have
immediately requested that the Lenders make a Revolving Loan which is a Base
Rate Loan in a principal amount equal to such reimbursement obligations. The
Administrative Agent shall promptly notify such Lenders of such deemed request
and, without the necessity of compliance with the requirements of Section
2.2.2,
Section
12.2
or
otherwise such Lender shall make available to the Administrative Agent its
Pro
Rata Share of such Loan. The proceeds of such Loan shall be paid over by the
Administrative Agent to the Issuing Lender for the account of the Borrowers
in
satisfaction of such reimbursement obligations. For the purposes of this
Agreement, the unparticipated portion of each Letter of Credit shall be deemed
to be the Issuing Lender’s “participation” therein. The Issuing Lender hereby
agrees, upon request of the Administrative Agent or any Lender, to deliver
to
the Administrative Agent or such Lender a list of all outstanding Letters of
Credit issued by the Issuing Lender, together with such information related
thereto as the Administrative Agent or such Lender may reasonably
request.
2.3.3 Reimbursement
Obligations.
(a) The
Borrowers hereby unconditionally and irrevocably agree to reimburse the Issuing
Lender for each payment or disbursement made by the Issuing Lender under any
Letter of Credit honoring any demand for payment made by the beneficiary
thereunder, in each case on the date that such payment or disbursement is made.
Any amount not reimbursed on the date of such payment or disbursement shall
bear
interest from the date of such payment or disbursement to the date that the
Issuing Lender is reimbursed by the
Borrowers
therefor, payable on demand, at a rate per annum equal to the Base Rate from
time to time in effect plus
the Base
Rate Margin from time to time in effect plus,
beginning on the third Business Day after receipt of notice from the Issuing
Lender of such payment or disbursement, 2%. The Issuing Lender shall notify
the
Borrowers and the Administrative Agent whenever any demand for payment is made
under any Letter of Credit by the beneficiary thereunder; provided
that the
failure of the Issuing Lender to so notify the Borrowers or the Administrative
Agent shall not affect the rights of the Issuing Lender or the Lenders in any
manner whatsoever.
(b) The
Borrowers’ reimbursement obligations hereunder shall be irrevocable and
unconditional under all circumstances, including (a) any lack of validity or
enforceability of any Letter of Credit, this Agreement or any other Loan
Document, (b) the existence of any claim, set-off, defense or other right which
any Loan Party may have at any time against a beneficiary named in a Letter
of
Credit, any transferee of any Letter of Credit (or any Person for whom any
such
transferee may be acting), the Administrative Agent, the Issuing Lender, any
Lender or any other Person, whether in connection with any Letter of Credit,
this Agreement, any other Loan Document, the transactions contemplated herein
or
any unrelated transactions (including any underlying transaction between any
Loan Party and the beneficiary named in any Letter of Credit), (c) the validity,
sufficiency or genuineness of any document which the Issuing Lender has
determined complies on its face with the terms of the applicable Letter of
Credit, even if such document should later prove to have been forged,
fraudulent, invalid or insufficient in any respect or any statement therein
shall have been untrue or inaccurate in any respect, or (d) the surrender or
impairment of any security for the performance or observance of any of the
terms
hereof. Without limiting the foregoing, no action or omission whatsoever by
the
Administrative Agent or any Lender (excluding any Lender in its capacity as
the
Issuing Lender) under or in connection with any Letter of Credit or any related
matters shall result in any liability of the Administrative Agent or any Lender
to a Borrower, or relieve a Borrower of any of its obligations hereunder to
any
such Person.
2.3.4 Funding
by Lenders to Issuing Lender.
If the
Issuing Lender makes any payment or disbursement under any Letter of Credit
and
(a) the Borrowers have not reimbursed the Issuing Lender in full for such
payment or disbursement by 11:00 A.M., Chicago time, on the date of such payment
or disbursement, (b) a Revolving Loan may not be made in accordance with
Section
2.3.2
or (c)
any reimbursement received by the Issuing Lender from the Borrowers is or must
be returned or rescinded upon or during any bankruptcy or reorganization of
a
Borrower or otherwise, each other Lender with a Revolving Loan Commitment shall
be obligated to pay to the Administrative Agent for the account of the Issuing
Lender, in full or partial payment of the purchase price of its participation
in
such Letter of Credit, its Pro Rata Share of such payment or disbursement (but
no such payment shall diminish the obligations of the Borrowers under
Section 2.3.3),
and,
upon notice from the Issuing Lender, the Administrative Agent shall promptly
notify each other Lender thereof. Each other Lender irrevocably and
unconditionally agrees to so pay to the Administrative Agent in immediately
available funds for the Issuing Lender’s account the amount of such other
Lender’s Pro Rata Share of such payment or disbursement. If and to the extent
any Lender shall not have made such amount available to the Administrative
Agent
by 2:00 P.M., Chicago time, on the Business Day on which such Lender receives
notice from the Administrative Agent of such payment or disbursement (it being
understood that any such notice received after noon, Chicago time, on any
Business
Day shall be deemed to have been received on the next following Business Day),
such Lender agrees to pay interest on such amount to the Administrative Agent
for the Issuing Lender’s account forthwith on demand, for each day from the date
such amount was to have been delivered to the Administrative Agent to the date
such amount is paid, at a rate per annum equal to (a) for the first three days
after demand, the Federal Funds Rate from time to time in effect and (b)
thereafter, the Base Rate from time to time in effect. Any Lender’s failure to
make available to the Administrative Agent its Pro Rata Share of any such
payment or disbursement shall not relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender’s Pro
Rata Share of such payment, but no Lender shall be responsible for the failure
of any other Lender to make available to the Administrative Agent such other
Lender’s Pro Rata Share of any such payment or disbursement.
2.4 Commitments
Several.
The
failure of any Lender to make a requested Loan on any date shall not relieve
any
other Lender of its obligation (if any) to make a Loan on such date, but no
Lender shall be responsible for the failure of any other Lender to make any
Loan
to be made by such other Lender.
2.5 Certain
Conditions.
Except
as otherwise provided in Sections 2.2.4 and 2.3.4 of this Agreement, no Lender
shall have an obligation to make any Loan, or to permit the continuation of
or
any conversion into any LIBOR Loan, and the Issuing Lender shall not have any
obligation to issue any Letter of Credit, if an Event of Default or Unmatured
Event of Default exists.
2.6 Agent
for the Borrowers.
Each
Borrower hereby designates the Company as its agent for all purposes of Section
2.
SECTION
3 EVIDENCING
OF LOANS.
3.1 Notes.
The
Loans of each Lender shall be evidenced by a Note, with appropriate insertions,
payable to the order of such Lender in a face principal amount equal to such
Lender’s Revolving Loan Commitment.
3.2 Recordkeeping.
The
Administrative Agent, on behalf of each Lender, shall record in its records,
the
date and amount of each Loan made by each Lender, each repayment or conversion
thereof and, in the case of each LIBOR Loan, the dates on which each Interest
Period for such Loan shall begin and end. The aggregate unpaid principal amount
so recorded shall be rebuttably presumptive evidence of the principal amount
of
the Loans owing and unpaid. The failure to so record any such amount or any
error in so recording any such amount shall not, however, limit or otherwise
affect the Obligations of the Borrowers hereunder or under any Note to repay
the
principal amount of the Loans hereunder, together with all interest accruing
thereon.
SECTION
4 INTEREST.
4.1 Interest
Rates.
The
Borrowers promise to pay interest on the unpaid principal amount of each Loan
for the period commencing on the date of such Loan until such Loan is paid
in
full as follows:
(a) at
all
times while such Loan is a Base Rate Loan, at a rate per annum equal to the
sum
of the Base Rate from time to time in effect plus the Base Rate Margin from
time
to time in effect; and
(b) at
all
times while such Loan is a LIBOR Loan, at a rate per annum equal to the sum
of
the LIBOR Rate applicable to each Interest Period for such Loan plus the LIBOR
Margin from time to time in effect;
provided
that at
any time an Event of Default exists, unless the Required Lenders otherwise
consent, the interest rate applicable to each Loan shall be increased by 2%
(and, in the case of Obligations not bearing interest, such Obligations shall
bear interest at the Base Rate applicable to Revolving Loans plus 2%),
provided further
that
such increase may thereafter be rescinded by the Required Lenders,
notwithstanding Section
15.1.
Notwithstanding the foregoing, upon the occurrence of an Event of Default under
Sections 13.1.1
or
13.1.4,
such
increase shall occur automatically.
4.2 Interest
Payment Dates.
Accrued
interest on each Base Rate Loan shall be payable in arrears on the last day
of
each calendar quarter and at maturity. Accrued interest on each LIBOR Loan
shall
be payable on the last day of each Interest Period relating to such Loan (and,
in the case of a LIBOR Loan with an Interest Period in excess of three months,
on the three-month anniversary of the first day of such Interest Period), upon
a
prepayment of such Loan, and at maturity. After maturity, and at any time an
Event of Default exists, accrued interest on all Loans shall be payable on
demand.
4.3 Setting
and Notice of LIBOR Rates.
The
applicable LIBOR Rate for each Interest Period shall be determined by the
Administrative Agent, and notice thereof shall be given by the Administrative
Agent promptly to the Borrowers and each Lender. Each determination of the
applicable LIBOR Rate by the Administrative Agent shall be conclusive and
binding upon the parties hereto, in the absence of demonstrable error. The
Administrative Agent shall, upon written request of the Borrowers or any Lender,
deliver to the Borrowers or such Lender a statement showing the computations
used by the Administrative Agent in determining any applicable LIBOR Rate
hereunder.
4.4 Computation
of Interest.
Interest
shall be computed for the actual number of days elapsed on the basis of a year
of 360 days. The applicable interest rate for each Base Rate Loan shall change
simultaneously with each change in the Base Rate.
SECTION
5 FEES.
5.1 Non-Use
Fee.
The
Borrowers agree to pay to the Administrative Agent for the account of each
Lender a non-use fee, for the period from the Closing Date to the Termination
Date, at the Non-Use Fee Rate in effect from time to time of such Lender’s Pro
Rata Share (as adjusted from time to time) of the unused amount of the Revolving
Commitment. For purposes of calculating usage under this Section, the Revolving
Commitment shall be deemed used to the extent of Revolving Outstandings (which
are exclusive of outstanding Swing Line Loans). Such non-use fee shall be
payable in arrears on the last day of each calendar quarter and on the
Termination
Date for any period then ending for which such non-use fee shall not have
previously been paid. The non-use fee shall be computed for the actual number
of
days elapsed on the basis of a year of 360 days.
5.2 Letter
of Credit Fees. (1)
The
Borrowers agree to pay to the Administrative Agent for the account of each
Lender a letter of credit fee for each Letter of Credit equal to the L/C Fee
Rate in effect from time to time of such Lender’s Pro Rata Share (as adjusted
from time to time) of the undrawn amount of such Letter of Credit (computed
for
the actual number of days elapsed on the basis of a year of 360 days);
provided
that,
unless the Required Lenders otherwise consent, the rate applicable to each
Letter of Credit shall be increased by 2% at any time that an Event of Default
exists. Such letter of credit fee shall be payable in arrears on the last day
of
each calendar quarter and on the Termination Date (or such later date on which
such Letter of Credit expires or is terminated) for the period from the date
of
the issuance of each Letter of Credit (or the last day on which the letter
of
credit fee was paid with respect thereto) to the date such payment is due or,
if
earlier, the date on which such Letter of Credit expired or was terminated.
(b) In
addition, with respect to each Letter of Credit, the Borrowers agree to pay
to
the Issuing Lender, for its own account, (i) such fees and expenses as the
Issuing Lender customarily requires in connection with the issuance,
negotiation, processing and/or administration of letters of credit in similar
situations and (ii) a letter of credit fronting fee in the amount and at the
times agreed to by the Borrowers and the Issuing Lender.
5.3 Administrative
Agent’s Fees.
The
Borrowers agree to pay to the Administrative Agent such agent’s fees as are
mutually agreed to from time to time by the Borrowers and the Administrative
Agent including the fees set forth in the Agent Fee Letter.
SECTION
6 REDUCTION
OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS; INCREASE IN REVOLVING
COMMITMENT.
6.1 Reduction
or Termination of the Revolving Commitment.
6.1.1 Voluntary
Reduction or Termination of the Revolving Commitment.
The
Borrowers may from time to time on at least five Business Days’ prior written
notice received by the Administrative Agent (which shall promptly advise each
Lender thereof) permanently reduce the Revolving Commitment to an amount not
less than the Revolving Outstandings plus
the
outstanding amount of all Swing Line Loans. Any such reduction shall be in
an
amount not less than $2,000,000 or a higher integral multiple of $1,000,000.
Concurrently with any reduction of the Revolving Commitment to zero, the
Borrowers shall pay all interest on the Revolving Loans, all non-use fees and
all letter of credit fees and shall Cash Collateralize in full all obligations
arising with respect to the Letters of Credit.
6.1.2 All
Reductions of the Revolving Commitment.
All
reductions of the Revolving Commitment shall reduce the Commitments ratably
among the Lenders according to their respective Pro Rata Shares.
6.2 Voluntary
Prepayments.
The
Borrowers may from time to time prepay the Loans in whole or in part;
provided
that the
Borrowers shall give the Administrative Agent (which shall promptly advise
each
Lender) notice thereof not later than 11:00 A.M., Chicago time, on the day
of
such prepayment (which shall be a Business Day), specifying the Loans to be
prepaid and the date and amount of prepayment. Any such partial prepayment
shall
be in an amount equal to $1,000,000 or
a
higher integral multiple of $100,000. Any partial prepayment of a Group of
LIBOR
Loans shall be subject to the proviso to Section
2.2.3(a).
Any
prepayment of a LIBOR Loan on a day other than the last day of an Interest
Period therefor shall include interest on the principal amount being repaid
and
shall be subject to Section
8.4.
Except
as otherwise provided by this Agreement, all principal payments in respect
of
the Loans (other than the Swing Line Loans) shall be applied first, to repay
outstanding Base Rate Loans and then to repay outstanding LIBOR Rate Loans
in
direct order of Interest Period maturities.
6.3 Repayments.
The
Revolving Loans of each Lender shall be paid in full and the Revolving
Commitment shall terminate on the Termination Date.
6.4 Increase
in Revolving Commitment.
If no
Event of Default shall have occurred and be continuing at such time, the
Borrowers may, if they so elect, increase the Revolving Commitment, either
by
designating a Person not theretofore a Lender and acceptable to the
Administrative Agent to become a Lender or by agreeing with an existing Lender
that such Lender’s Revolving Loan Commitment shall be increased. Upon execution
and delivery by the Borrowers and such Lender or other Person of an instrument
of assumption in form and amount reasonably satisfactory to the Administrative
Agent, such existing Lender shall have a Revolving Loan Commitment as therein
set forth or such other Person shall become a Lender with a Revolving Loan
Commitment as therein set forth and all the rights and obligations of the Lender
with such a Revolving Loan Commitment hereunder; provided
that (i)
the Borrowers shall provide not less than 15 days written notice of such
increase to the Administrative Agent, which shall promptly notify the other
Lenders, (ii) the aggregate amount of each such increase which is effective
on
any day shall be at least $5,000,000, (iii) the Revolving Commitment shall
at no
time exceed $70,000,000, (iv) the Administrative Agent shall have consented
in
writing, (v) not more than 2 Revolving Commitment increases may be issued in
any
calendar year, (vi) no Lender may have a greater Pro Rata Share than LaSalle’s
Pro Rata Share and (vii) a Person becoming a Lender with a Revolving Loan
Commitment or a Lender increasing its Revolving Loan Commitment, as appropriate,
shall have received any required customary closing conditions, including,
without limitation, a Borrower’s authorizing resolutions and opinions of
counsel. Any request received by the Administrative Agent from the Borrowers
to
increase the Revolving Commitment shall be delivered to each Lender and shall
be
implemented by one or more existing Lenders agreeing to increase their Revolving
Loan Commitments or by a Person agreeing to become a Lender with a Revolving
Loan Commitment; provided
that no
Lender shall have any obligation to increase its Revolving Loan Commitment
but
each Lender shall have the right to elect to increase its Revolving Loan
Commitment in its sole discretion pro rata with any other one or more Persons
agreeing to become a Lender hereunder or by any combination of the
foregoing,
as determined by the Administrative Agent in consultation with the Company.
An
increase in the Revolving Commitment and any amendments to the Credit Agreement
to evidence such increase shall not require the consent of any Lender not
participating in such increase.
SECTION
7 MAKING
AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making
of Payments.
All
payments of principal or interest on the Notes, and of all fees, shall be made
by the Borrowers to the Administrative Agent in immediately available funds
at
the office specified by the Administrative Agent not later than noon, Chicago
time, on the date due; and funds received after that hour shall be deemed to
have been received by the Administrative Agent on the following Business Day.
The Administrative Agent shall promptly remit to each Lender its share of all
such payments received in collected funds by the Administrative Agent for the
account of such Lender. All payments under Section 8.1 shall be made by the
Borrowers directly to the Lender entitled thereto without setoff, counterclaim
or other defense.
7.2 Application
of Certain Payments.
So long
as no Unmatured Event of Default or Event of Default has occurred and is
continuing, (a) payments matching specific scheduled payments then due shall
be
applied to those scheduled payments and (b) voluntary and mandatory prepayments
shall be applied as set forth in Sections
6.2
and
6.3.
After
the occurrence and during the continuance of an Unmatured Event of Default
or
Event of Default, all amounts collected or received by the Administrative Agent
or any Lender through set-off shall be applied as the Administrative Agent
shall
determine in its discretion. Concurrently with each remittance to any Lender
of
its share of any such payment, the Administrative Agent shall advise such Lender
as to the application of such payment.
7.3 Due
Date Extension.
If any
payment of principal or interest with respect to any of the Loans, or of any
fees, falls due on a day which is not a Business Day, then such due date shall
be extended to the immediately following Business Day (unless, in the case
of a
LIBOR Loan, such immediately following Business Day is the first Business Day
of
a calendar month, in which case such due date shall be the immediately preceding
Business Day) and, in the case of principal, additional interest shall accrue
and be payable for the period of any such extension.
7.4 Setoff.
Each
Borrower, for itself and each other Loan Party, agrees that the Administrative
Agent and each Lender have all rights of set-off and bankers’ lien provided by
applicable law, and in addition thereto, each Borrower, for itself and each
other Loan Party, agrees that at any time any Event of Default exists, the
Administrative Agent and each Lender may apply to the payment of any Obligations
of the Borrowers and each other Loan Party hereunder, whether or not then due,
any and all balances, credits, deposits, accounts or moneys of the Borrowers
and
each other Loan Party then or thereafter with the Administrative Agent or such
Lender.
7.5 Proration
of Payments.
If any
Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset or otherwise, on account of (a) principal
of
or
interest on any Loan, but excluding (i) any payment pursuant to Section
8.7
or
15.7
and (ii)
payments of interest on any Affected Loan) or (b) its participation in any
Letter of Credit) in excess of its applicable Pro Rata Share of payments and
other recoveries obtained by all Lenders on account of principal of and interest
on the Loans (or such participation) then held by them, then such Lender shall
purchase from the other Lenders such participations in the Loans (or
sub-participations in Letters of Credit) held by them as shall be necessary
to
cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided
that if
all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and
the
purchase price restored to the extent of such recovery.
7.6 Taxes.
(a) All
payments made by the Borrowers hereunder or under any Loan Documents shall
be
made without setoff, counterclaim, or other defense. To the extent permitted
by
applicable law, all payments hereunder or under the Loan Documents (including
any payment of principal, interest, or fees) to, or for the benefit, of any
person shall be made by the Borrowers free and clear of and without deduction
or
withholding for, or account of, any Taxes now or hereinafter imposed by any
taxing authority.
(b) If
a
Borrower makes any payment hereunder or under any Loan Document in respect
of
which it is required by applicable law to deduct or withhold any Taxes, the
Borrowers shall increase the payment hereunder or under any such Loan Document
such that after the reduction for the amount of Taxes withheld (and any taxes
withheld or imposed with respect to the additional payments required under
this
Section
7.6(b)),
the
amount paid to the Lenders or the Administrative Agent equals the amount that
was payable hereunder or under any such Loan Document without regard to this
Section
7.6(b).
To the
extent a Borrower withholds any Taxes on payments hereunder or under any Loan
Document, the Borrowers shall pay the full amount deducted to the relevant
taxing authority within the time allowed for payment under applicable law and
shall deliver to the Administrative Agent within 30 days after it has made
payment to such authority a receipt issued by such authority (or other evidence
satisfactory to the Administrative Agent) evidencing the payment of all amounts
so required to be deducted or withheld from such payment.
(c) If
any
Lender or the Administrative Agent is required by law to make any payments
of
any Taxes on or in relation to any amounts received or receivable hereunder
or
under any other Loan Document, or any Tax is assessed against a Lender or the
Administrative Agent with respect to amounts received or receivable hereunder
or
under any other Loan Document, each Borrower will indemnify such person against
(i) such Tax (and any reasonable counsel fees and expenses associated with
such
Tax) and (ii) any taxes imposed as a result of the receipt of the payment under
this Section
7.6(c).
A
certificate prepared in good faith as to the amount of such payment by such
Lender or the Administrative Agent shall, absent manifest error, be final,
conclusive, and binding on all parties.
(d) (i)
To
the extent permitted by applicable law, each Lender that is not a United States
person within the meaning of Code Section 7701(a)(30) (a “Non-U.S.
Participant”)
shall
deliver to the Borrowers and the Administrative Agent on or prior to the Closing
Date (or in the case of a Lender that is an Assignee, on the date of such
assignment to such Lender) two accurate and complete original signed copies
of
IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable form
prescribed by the IRS) certifying to such Lender’s entitlement to a complete
exemption from, or a reduced rate in, United States withholding tax on interest
payments to be made hereunder or any Loan. If a Lender that is a Non-U.S.
Participant is claiming a complete exemption from withholding on interest
pursuant to Code Sections 871(h) or 881(c), the Lender shall deliver (along
with
two accurate and complete original signed copies of IRS Form W-8BEN) a
certificate in form and substance reasonably acceptable to Administrative Agent
(any such certificate, a “Withholding
Certificate”).
In
addition, each Lender that is a Non-U.S. Participant agrees that from time
to
time after the Closing Date, (or in the case of a Lender that is an Assignee,
after the date of the assignment to such Lender), when a lapse in time (or
change in circumstances occurs) renders the prior certificates hereunder
obsolete or inaccurate in any material respect, such Lender shall, to the extent
permitted under applicable law, deliver to the Borrowers and the Administrative
Agent two new and accurate and complete original signed copies of an IRS Form
W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed
by the IRS), and if applicable, a new Withholding Certificate, to confirm or
establish the entitlement of such Lender or the Administrative Agent to an
exemption from, or reduction in, United States withholding tax on interest
payments to be made hereunder or any Loan.
(ii) Each
Lender that is not a Non-U.S. Participant (other than any such Lender which
is
taxed as a corporation for U.S. federal income tax purposes) shall provide
two
properly completed and duly executed copies of IRS Form W-9 (or any successor
or
other applicable form) to the Borrowers and the Administrative Agent certifying
that such Lender is exempt from United States backup withholding tax. To the
extent that a form provided pursuant to this Section
7.6(d)(ii)
is
rendered obsolete or inaccurate in any material respects as result of change
in
circumstances with respect to the status of a Lender, such Lender shall, to
the
extent permitted by applicable law, deliver to the Borrowers and the
Administrative Agent revised forms necessary to confirm or establish the
entitlement to such Lender’s or Agent’s exemption from United States backup
withholding tax.
(iii) The
Borrowers shall not be required to pay additional amounts to a Lender, or
indemnify any Lender, under this Section
7.6
to the
extent that such obligations would not have arisen but for the failure of such
Lender to comply with Section
7.6(d).
(iv) Each
Lender agrees to indemnify the Administrative Agent and hold the Administrative
Agent harmless for the full amount of any and all present or future Taxes and
related liabilities (including penalties, interest, additions to tax and
expenses, and any Taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under this Section
7.6)
which
are imposed on or with respect to principal, interest or fees payable to such
Lender hereunder and which are not paid by the Borrowers pursuant to this
Section
7.6,
whether
or not
such
Taxes or related liabilities were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the Administrative
Agent makes written demand therefor.
SECTION
8 INCREASED
COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.
8.1 Increased
Costs.
(a) If,
after the date hereof, the adoption of, or any change in, any applicable law,
rule or regulation, or any change in the interpretation or administration of
any
applicable law, rule or regulation by any governmental authority, central bank
or comparable agency charged with the interpretation or administration thereof,
or compliance by any Lender with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i)
shall impose, modify or deem applicable any reserve (including any reserve
imposed by the FRB, but excluding any reserve included in the determination
of
the LIBOR Rate pursuant to Section
4),
special deposit or similar requirement against assets of, deposits with or
for
the account of, or credit extended by any Lender; or (ii) shall impose on any
Lender any other condition affecting its LIBOR Loans, its Note or its obligation
to make LIBOR Loans; and the result of anything described in clauses (i) and
(ii) above is to increase the cost to (or to impose a cost on) such Lender
(or
any LIBOR Office of such Lender) of making or maintaining any LIBOR Loan, or
to
reduce the amount of any sum received or receivable by such Lender (or its
LIBOR
Office) under this Agreement or under its Note with respect thereto, then upon
demand by such Lender (which demand shall be accompanied by a statement setting
forth the basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the Administrative
Agent), the Borrowers shall pay directly to such Lender such additional amount
as will compensate such Lender for such increased cost or such reduction, so
long as such amounts have accrued on or after the day which is 180 days prior
to
the date on which such Lender first made demand therefor.
(b) If
any
Lender shall reasonably determine that any change in, or the adoption or
phase-in of, any applicable law, rule or regulation regarding capital adequacy,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or the compliance by any Lender or
any
Person controlling such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate
of
return on such Lender’s or such controlling Person’s capital as a consequence of
such Lender’s obligations hereunder or under any Letter of Credit to a level
below that which such Lender or such controlling Person could have achieved
but
for such change, adoption, phase-in or compliance (taking into consideration
such Lender’s or such controlling Person’s policies with respect to capital
adequacy) by an amount deemed by such Lender or such controlling Person to
be
material, then from time to time, upon demand by such Lender (which demand
shall
be accompanied by a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail, a copy of which shall
be
furnished to the Administrative Agent), the Borrowers shall pay to such Lender
such additional amount as will compensate such Lender or such controlling Person
for such reduction so long as such amounts have
accrued
on or after the day which is 180 days prior to the date on which such Lender
first made demand therefor.
8.2 Basis
for Determining Interest Rate Inadequate or Unfair.
If:
(a) the
Administrative Agent reasonably determines (which determination shall be binding
and conclusive on the Borrowers) that by reason of circumstances affecting
the
interbank LIBOR market adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate; or
(b) the
Required Lenders advise the Administrative Agent that the LIBOR Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of maintaining or funding LIBOR Loans for such Interest
Period (taking into account any amount to which such Lenders may be entitled
under Section
8.1)
or that
the making or funding of LIBOR Loans has become impracticable as a result of
an
event occurring after the date of this Agreement which in the opinion of such
Lenders materially affects such Loans;
then
the
Administrative Agent shall promptly notify the other parties thereof and, so
long as such circumstances shall continue, (i) no Lender shall be under any
obligation to make or convert any Base Rate Loans into LIBOR Loans and (ii)
on
the last day of the current Interest Period for each LIBOR Loan, such Loan
shall, unless then repaid in full, automatically convert to a Base Rate
Loan.
8.3 Changes
in Law Rendering LIBOR Loans Unlawful.
If any
change in, or the adoption of any new, law or regulation, or any change in
the
interpretation of any applicable law or regulation by any governmental or other
regulatory body charged with the administration thereof, should make it (or
in
the good faith judgment of any Lender cause a substantial question as to whether
it is) unlawful for any Lender to make, maintain or fund LIBOR Loans, then
such
Lender shall promptly notify each of the other parties hereto and, so long
as
such circumstances shall continue, (a) such Lender shall have no obligation
to
make or convert any Base Rate Loan into a LIBOR Loan (but shall make Base Rate
Loans concurrently with the making of or conversion of Base Rate Loans into
LIBOR Loans by the Lenders which are not so affected, in each case in an amount
equal to the amount of LIBOR Loans which would be made or converted into by
such
Lender at such time in the absence of such circumstances) and (b) on the last
day of the current Interest Period for each LIBOR Loan of such Lender (or,
in
any event, on such earlier date as may be required by the relevant law,
regulation or interpretation), such LIBOR Loan shall, unless then repaid in
full, automatically convert to a Base Rate Loan. Each Base Rate Loan made by
a
Lender which, but for the circumstances described in the foregoing sentence,
would be a LIBOR Loan (an “Affected
Loan”)
shall
remain outstanding for the period corresponding to the Group of LIBOR Loans
of
which such Affected Loan would be a part absent such circumstances.
8.4 Funding
Losses.
Each
Borrower hereby agrees that upon demand by any Lender (which demand shall be
accompanied by a statement setting forth the basis for the amount being claimed,
a copy of which shall be furnished to the Administrative Agent), each Borrower
will
indemnify
such Lender against any net loss or expense which such Lender may sustain or
incur (including any net loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
or
maintain any LIBOR Loan), as reasonably determined by such Lender, as a result
of (a) any payment, prepayment or conversion of any LIBOR Loan of such Lender
on
a date other than the last day of an Interest Period for such Loan (including
any conversion pursuant to Section
8.3)
or (b)
any failure of the Borrowers to borrow, convert or continue any Loan on a date
specified therefor in a notice of borrowing, conversion or continuation pursuant
to this Agreement. For this purpose, all notices to the Administrative Agent
pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right
of Lenders to Fund through Other Offices.
Each
Lender may, if it so elects, fulfill its commitment as to any LIBOR Loan by
causing a foreign branch or Affiliate of such Lender to make such Loan;
provided
that in
such event for the purposes of this Agreement such Loan shall be deemed to
have
been made by such Lender and the obligation of the Borrowers to repay such
Loan
shall nevertheless be to such Lender and shall be deemed held by it, to the
extent of such Loan, for the account of such branch or Affiliate.
8.6 Discretion
of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if
such
Lender had actually funded and maintained each LIBOR Loan during each Interest
Period for such Loan through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest rate equal to
the
LIBOR Rate for such Interest Period.
8.7 Mitigation
of Circumstances; Replacement of Lenders.
(a) Each
Lender shall promptly notify the Borrowers and the Administrative Agent of
any
event of which it has knowledge which will result in, and will use reasonable
commercial efforts available to it (and not, in such Lender’s sole judgment,
otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any
obligation by the Borrowers to pay any amount pursuant to Sections
7.6
or
8.1
or (ii)
the occurrence of any circumstances described in Sections
8.2
or
8.3
(and, if
any Lender has given notice of any such event described in clause (i) or (ii)
above and thereafter such event ceases to exist, such Lender shall promptly
so
notify the Borrowers and the Administrative Agent). Without limiting the
foregoing, each Lender will designate a different funding office if such
designation will avoid (or reduce the cost to the Borrowers of) any event
described in clause (i) or (ii) above and such designation will not, in such
Lender’s sole judgment, be otherwise disadvantageous to such
Lender.
(b) If
the
Borrowers become obligated to pay additional amounts to any Lender pursuant
to
Sections
7.6
or
8.1,
or any
Lender gives notice of the occurrence of any circumstances described in
Sections
8.2
or
8.3,
the
Borrowers may designate another bank which is acceptable to the Administrative
Agent and the Issuing Lender in their reasonable discretion (such other bank
being called a “Replacement
Lender”)
to
purchase the Loans of such Lender and such Lender’s rights hereunder, without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of the Loans payable to such Lender
plus any accrued but unpaid interest on such Loans and
all
accrued but unpaid fees owed to such Lender and any other amounts payable to
such Lender under this Agreement, and to assume all the obligations of such
Lender hereunder, and, upon such purchase and assumption (pursuant to an
Assignment Agreement), such Lender shall no longer be a party hereto or have
any
rights hereunder (other than rights with respect to indemnities and similar
rights applicable to such Lender prior to the date of such purchase and
assumption) and shall be relieved from all obligations to the Borrowers
hereunder, and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.
8.8 Conclusiveness
of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Sections
8.1,
8.2,
8.3
or
8.4
shall be
conclusive absent demonstrable error. Lenders may use reasonable averaging
and
attribution methods in determining compensation under Sections
8.1
and
8.4,
and the
provisions of such Sections shall survive repayment of the Obligations,
cancellation of any Notes, expiration or termination of the Letters of Credit
and termination of this Agreement.
SECTION
9 REPRESENTATIONS
AND WARRANTIES.
To
induce
the Administrative Agent and the Lenders to enter into this Agreement and to
induce the Lenders to make Loans and issue and participate in Letters of Credit
hereunder, the Borrowers represent and warrant to the Administrative Agent
and
the Lenders that:
9.1 Organization.
Each
Loan Party is validly existing and in good standing under the laws of its
jurisdiction of organization; and each Loan Party is duly qualified to do
business in each jurisdiction where, because of the nature of its activities
or
properties, such qualification is required, except for such jurisdictions where
the failure to so qualify would not have a Material Adverse Effect.
9.2 Authorization;
No Conflict.
Each
Loan Party is duly authorized to execute and deliver each Loan Document to
which
it is a party, the Borrowers are duly authorized to borrow monies hereunder
and
each Loan Party is duly authorized to perform its Obligations under each Loan
Document to which it is a party. The execution, delivery and performance by
each
Loan Party of each Loan Document to which it is a party, and the borrowings
by
the Borrowers hereunder, do not and will not (a) require any consent or approval
of any governmental agency or authority (other than any consent or approval
which has been obtained and is in full force and effect), (b) conflict with
(i)
any provision of law, (ii) the charter, by-laws or other organizational
documents of any Loan Party or (iii) any agreement, indenture, instrument or
other document, or any judgment, order or decree, which is binding upon any
Loan
Party or any of their respective properties or (c) require, or result in, the
creation or imposition of any Lien on any asset of any Loan Party.
9.3 Validity
and Binding Nature.
Each of
this Agreement and each other Loan Document to which any Loan Party is a party
is the legal, valid and binding obligation of such Person, enforceable against
such Person in accordance with its terms, subject to bankruptcy, insolvency
and
similar laws affecting the enforceability of creditors’ rights generally and to
general principles of equity.
9.4 Financial
Condition.
The
audited consolidated financial statements of the Company and its Subsidiaries
as
at Fiscal Year 2005 copies of each of which have been delivered to each Lender,
were prepared in accordance with GAAP and present fairly the consolidated
financial condition of the Company and its Subsidiaries as at such dates and
the
results of their operations for the periods then ended.
9.5 No
Material Adverse Change.
Since
Fiscal Year 2005, there has been no material adverse change in the financial
condition, operations, assets, business, properties or prospects of the Loan
Parties taken as a whole.
9.6 Litigation
and Contingent Liabilities.
No
litigation (including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to the Borrowers’
knowledge, threatened against any Loan Party which might reasonably be expected
to have a Material Adverse Effect, except as set forth in Schedule
9.6.
Other
than any liability incident to such litigation or proceedings, no Loan Party
has
any material contingent liabilities not listed on Schedule
9.6
or
permitted by Section
11.1.
9.7 Ownership
of Properties; Liens.
Each
Loan Party owns good and, in the case of real property, marketable title to
all
of its properties and assets, real and personal, tangible and intangible, of
any
nature whatsoever (including patents, trademarks, trade names, service marks
and
copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, service marks,
copyrights and the like) except as permitted by Section
11.2.
9.8 Equity
Ownership; Subsidiaries. Schedule
9.8
contains
an accurate list of all Subsidiaries of the Company, sets forth their respective
states of organization and the percentage of their outstanding Capital
Securities owned by the Company or other Subsidiaries. All issued and
outstanding Capital Securities of each Loan Party are duly authorized and
validly issued, fully paid, non-assessable, and free and clear of all Liens
other than those in favor of the Administrative Agent, and such securities
were
issued in compliance with all applicable state and federal laws concerning
the
issuance of securities. Schedule
9.8
sets
forth the authorized Capital Securities of each Loan Party as of the Closing
Date. All of the issued and outstanding Capital Securities of the Borrowers
are
owned as set forth on Schedule
9.8
as of
the Closing Date, and all of the issued and outstanding Capital Securities
of
each Wholly-Owned Subsidiary is, directly or indirectly, owned by the Company.
As of the Closing Date, except as set forth on Schedule
9.8,
there
are no pre-emptive or other outstanding rights, options, warrants, conversion
rights or other similar agreements or understandings for the purchase or
acquisition of any Capital Securities of any Loan Party.
9.9 Pension
Plans.
(a) The
Unfunded Liability of all Pension Plans does not in the aggregate exceed twenty
percent of the Total Plan Liability for all such Pension Plans. Each Pension
Plan complies in all material respects with all applicable requirements of
law
and regulations. No contribution failure under Section 412 of the Code, Section
302 of ERISA or the terms of any Pension Plan has occurred with respect to
any
Pension Plan, sufficient to give rise to a Lien under Section 302(f) of ERISA,
or otherwise to have a Material Adverse Effect. There are no pending or, to
the
knowledge of the Borrowers, threatened, claims, actions, investigations
or
lawsuits against any Pension Plan, any fiduciary of any Pension Plan, or the
Company or other any member of the Controlled Group with respect to a Pension
Plan or a Multiemployer Pension Plan which could reasonably be expected to
have
a Material Adverse Effect. Neither the Company nor any other member of the
Controlled Group has engaged in any prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with any Pension
Plan or Multiemployer Pension Plan which would subject that Person to any
material liability. Within the past five years, neither the Company nor any
other member of the Controlled Group has engaged in a transaction which resulted
in a Pension Plan with an Unfunded Liability being transferred out of the
Controlled Group, which could reasonably be expected to have a Material Adverse
Effect. No Termination Event has occurred or is reasonably expected to occur
with respect to any Pension Plan, which could reasonably be expected to have
a
Material Adverse Effect.
(b) All
contributions (if any) have been made to any Multiemployer Pension Plan that
are
required to be made by the Company or any other member of the Controlled Group
under the terms of the plan or of any collective bargaining agreement or by
applicable law; neither the Company nor any other member of the Controlled
Group
has withdrawn or partially withdrawn from any Multiemployer Pension Plan,
incurred any withdrawal liability with respect to any such plan or received
notice of any claim or demand for withdrawal liability or partial withdrawal
liability from any such plan, and no condition has occurred which, if continued,
could result in a withdrawal or partial withdrawal from any such plan; and
neither the Company nor any other member of the Controlled Group has received
any notice that any Multiemployer Pension Plan is in reorganization, that
increased contributions may be required to avoid a reduction in plan benefits
or
the imposition of any excise tax, that any such plan is or has been funded
at a
rate less than that required under Section 412 of the Code, that any such plan
is or may be terminated, or that any such plan is or may become
insolvent.
9.10 Investment
Company Act.
No Loan
Party is an “investment company” or a company “controlled” by an “investment
company” or a “subsidiary” of an “investment company,” within the meaning of the
Investment Company Act of 1940.
9.11 Public
Utility Holding Company Act.
No Loan
Party is a “holding company”, or a “subsidiary company” of a “holding company,”
or an “affiliate” of a “holding company” or of a “subsidiary company” of a
“holding company,” within the meaning of the Public Utility Holding Company Act
of 1935.
9.12 Regulation
U.
The
Borrowers are not engaged principally, or as one of its important activities,
in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock.
9.13 Taxes.
Each
Loan Party has timely filed all tax returns and reports required by law to
have
been filed by it and has paid all taxes and governmental charges due and payable
with respect to such return, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books. The Loan Parties have made adequate reserves on
their
books and records in accordance with GAAP for all taxes that have accrued but
which are not yet due and payable. No Loan Party has participated in any
transaction that relates to a year of the taxpayer (which is still open under
the applicable statute of limitations) which is a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4(b)(2) (irrespective
of the date when the transaction was entered into).
9.14 Solvency,
etc.
On the
Closing Date, and immediately prior to and after giving effect to the issuance
of each Letter of Credit and each borrowing hereunder and the use of the
proceeds thereof, with respect to each Loan Party, individually, (a) the fair
value of its assets is greater than the amount of its liabilities (including
disputed, contingent and unliquidated liabilities) as such value is established
and liabilities evaluated in accordance with GAAP, (b) the present fair saleable
value of its assets is not less than the amount that will be required to pay
the
probable liability on its debts as they become absolute and matured, (c) it
is
able to realize upon its assets and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they mature
in
the normal course of business, (d) it does not intend to, and does not believe
that it will, incur debts or liabilities beyond its ability to pay as such
debts
and liabilities mature and (e) it is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which its property
would constitute unreasonably small capital.
9.15 Environmental
Matters.
The
on-going operations of each Loan Party comply in all respects with all
Environmental Laws, except such non-compliance which could not (if enforced
in
accordance with applicable law) reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect. Each Loan Party
has obtained, and maintained in good standing, all licenses, permits,
authorizations, registrations and other approvals required under any
Environmental Law and required for their respective ordinary course operations,
and for their reasonably anticipated future operations, and each Loan Party
is
in compliance with all terms and conditions thereof, except where the failure
to
do so could not reasonably be expected to result in material liability to any
Loan Party and could not reasonably be expected to result, either individually
or in the aggregate, in a Material Adverse Effect. No Loan Party or any of
its
properties or operations is subject to, or reasonably anticipates the issuance
of, any written order from or agreement with any Federal, state or local
governmental authority, nor subject to any judicial or docketed administrative
or other proceeding, respecting any Environmental Law, Environmental Claim
or
Hazardous Substance. There are no Hazardous Substances or other conditions
or
circumstances existing with respect to any property, arising from operations
prior to the Closing Date, or relating to any waste disposal, of any Loan Party
that would reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect. No Loan Party has any underground
storage tanks that are not properly registered, permitted or operated under
applicable Environmental Laws.
9.16 Insurance.
Set
forth on Schedule
9.16
is a
complete and accurate summary of the property and casualty insurance program
of
the Loan Parties as of the Closing Date (including the names of all insurers,
policy numbers, expiration dates, amounts and types of coverage, annual
premiums, exclusions, deductibles, self-insured retention, and a description
in
reasonable detail of any self-insurance program, retrospective rating plan,
fronting arrangement or other risk assumption arrangement involving any Loan
Party). Each Loan Party and its properties are insured with financially sound
and reputable insurance companies which are not Affiliates of the
Loan
Parties, in such amounts, with such deductibles and covering such risks as
are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where such Loan Parties operate.
9.17 Real
Property.
Set
forth on Schedule
9.17
is a
complete and accurate list, as of the Closing Date, of the address of all real
property owned or leased by any Loan Party, together with, in the case of leased
property, the name and mailing address of the lessor of such
property.
9.18 Information.
All
information heretofore or contemporaneously herewith furnished in writing by
any
Loan Party to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement and the transactions contemplated hereby is,
and
all written information hereafter furnished by or on behalf of any Loan Party
to
the Administrative Agent or any Lender pursuant hereto or in connection herewith
will be, true and accurate in every material respect on the date as of which
such information is dated or certified, and none of such information is or
will
be incomplete by omitting to state any material fact necessary to make such
information not misleading in light of the circumstances under which made (it
being recognized by the Administrative Agent and the Lenders that any
projections and forecasts provided by the Borrowers are based on good faith
estimates and assumptions believed by the Borrowers to be reasonable as of
the
date of the applicable projections or assumptions and that actual results during
the period or periods covered by any such projections and forecasts may differ
from projected or forecasted results).
9.19 Intellectual
Property.
Each
Loan Party owns and possesses or has a license or other right to use all
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service xxxx rights and copyrights as are necessary
for
the conduct of the businesses of the Loan Parties, without any infringement
upon
rights of others which could reasonably be expected to have a Material Adverse
Effect.
9.20 Burdensome
Obligations.
No Loan
Party is a party to any agreement or contract or subject to any restriction
contained in its organizational documents which could reasonably be expected
to
have a Material Adverse Effect.
9.21 Labor
Matters.
Except
as set forth on Schedule
9.21,
no Loan
Party is subject to any labor or collective bargaining agreement. There are
no
existing or threatened strikes, lockouts or other labor disputes involving
any
Loan Party that singly or in the aggregate could reasonably be expected to
have
a Material Adverse Effect. Hours worked by and payment made to employees of
the
Loan Parties are not in violation of the Fair Labor Standards Act or any other
applicable law, rule or regulation dealing with such matters.
9.22 No
Default.
No Event
of Default or Unmatured Event of Default exists or would result from the
incurrence by any Loan Party of any Debt hereunder or under any other Loan
Document.
SECTION
10 AFFIRMATIVE
COVENANTS.
Until
the
expiration or termination of the Commitments and thereafter until all
Obligations hereunder and under the other Loan Documents are paid in full and
all Letters of
Credit
have been terminated, each Borrower agrees that, unless at any time the Required
Lenders shall otherwise expressly consent in writing, it will:
10.1 Reports,
Certificates and Other Information.
Furnish
to the Administrative Agent and each Lender:
10.1.1 Annual
Report.
Promptly
when available and in any event within 90 days after the close of each Fiscal
Year: (a) a copy of the annual audit report of the Company and its Subsidiaries
for such Fiscal Year, including therein consolidated balance sheets and
statements of earnings and cash flows of the Company and its Subsidiaries as
at
the end of such Fiscal Year, certified without adverse reference to going
concern value and without qualification by independent auditors of recognized
standing selected by the Company and reasonably acceptable to the Administrative
Agent; and (b) a consolidating balance sheet of the Company and its Subsidiaries
as of the end of such Fiscal Year and consolidating statement of earnings and
cash flows for the Company and its Subsidiaries for such Fiscal Year, certified
by a Senior Officer of the Company.
10.1.2 Interim
Reports.
Promptly
when available and in any event within 45 days after the end of each Fiscal
Quarter (except the last Fiscal Quarter of each Fiscal Year), consolidated
and
consolidating balance sheets of the Company and its Subsidiaries as of the
end
of such Fiscal Quarter, together with consolidated and consolidating statements
of earnings and cash flows for such Fiscal Quarter and for the period beginning
with the first day of such Fiscal Year and ending on the last day of such Fiscal
Quarter, certified by a Senior Officer of the Company.
10.1.3 Compliance
Certificates.
Contemporaneously with the furnishing of a copy of each annual audit report
pursuant to Section
10.1.1
and each
set of quarterly statements pursuant to Section
10.1.2,
a duly
completed compliance certificate in the form of Exhibit
B,
with
appropriate insertions, dated the date of such annual report or such quarterly
statements and signed by a Senior Officer of the Company, containing (i) a
computation of each of the financial ratios and restrictions set forth in
Section
11.14
and to
the effect that such officer has not become aware of any Event of Default or
Unmatured Event of Default that has occurred and is continuing or, if there
is
any such event, describing it and the steps, if any, being taken to cure it
and
(ii) a written statement of the Company’s management setting forth a discussion
of the Company’s financial condition, changes in financial condition and results
of operations.
10.1.4 Reports
to the SEC and to Shareholders.
Promptly
upon the filing or sending thereof, copies of all regular, periodic or special
reports of any Loan Party filed with the SEC; copies of all registration
statements of any Loan Party filed with the SEC (other than on Form S-8); and
copies of all proxy statements or other communications made to security holders
generally.
10.1.5 Notice
of Default, Litigation and ERISA Matters.
Promptly
upon becoming aware of any of the following, written notice describing the
same
and the steps being taken by the Company or the Subsidiary affected thereby
with
respect thereto:
(a) the
occurrence of an Event of Default or an Unmatured Event of Default;
(b) any
litigation, arbitration or governmental investigation or proceeding not
previously disclosed by the Borrowers to the Lenders which has been instituted
or, to the knowledge of the Borrowers, is threatened against any Loan Party
or
to which any of the properties of any thereof is subject which might reasonably
be expected to have a Material Adverse Effect;
(c) the
institution of any steps by any member of the Controlled Group or any other
Person to terminate any Pension Plan, or the failure of any member of the
Controlled Group to make a required contribution to any Pension Plan (if such
failure is sufficient to give rise to a Lien under Section 302(f) of ERISA)
or
to any Multiemployer Pension Plan, or the taking of any action with respect
to a
Pension Plan which could result in the requirement that the Borrowers furnish
a
bond or other security to the PBGC or such Pension Plan, or the occurrence
of
any event with respect to any Pension Plan or Multiemployer Pension Plan which
could result in the incurrence by any member of the Controlled Group of any
material liability, fine or penalty (including any claim or demand for
withdrawal liability or partial withdrawal from any Multiemployer Pension Plan),
or any material increase in the contingent liability of the Borrowers with
respect to any post-retirement welfare benefit plan or other employee benefit
plan of the Company or another member of the Controlled Group, or any notice
that any Multiemployer Pension Plan is in reorganization, that increased
contributions may be required to avoid a reduction in plan benefits or the
imposition of an excise tax, that any such plan is or has been funded at a
rate
less than that required under Section 412 of the Code, that any such plan is
or
may be terminated, or that any such plan is or may become
insolvent;
(d) any
cancellation or material change in any insurance maintained by any Loan Party;
or
(e) any
other
event (including (i) any violation of any Environmental Law or the assertion
of
any Environmental Claim or (ii) the enactment or effectiveness of any law,
rule
or regulation) which might reasonably be expected to have a Material Adverse
Effect.
10.1.6 Management
Reports.
Promptly
upon receipt thereof, copies of all detailed financial and management reports
submitted to the Company by independent auditors in connection with each annual
or interim audit made by such auditors of the books of the Company.
10.1.7 Projections.
As soon
as practicable, and in any event not later than 30 days after the commencement
of each Fiscal Year, financial projections for the Company and its Subsidiaries
for such Fiscal Year (including monthly operating and cash flow budgets)
prepared in a manner consistent with the projections delivered by the Company
to
the Lenders prior to the Closing Date or otherwise in a manner reasonably
satisfactory to the Administrative Agent, accompanied by a certificate of a
Senior Officer of the Company on behalf of the Company to the effect that (a)
such projections were prepared by the Company in good faith, (b) the Company
has
a reasonable basis for the assumptions contained in such projections and (c)
such projections have been prepared in accordance with such
assumptions.
10.1.8 Subordinated
Debt Notices.
Promptly
following receipt, copies of any notices (including notices of default or
acceleration) received from any holder or trustee of, under or with respect
to
any Subordinated Debt.
10.1.9 Other
Information.
Promptly
from time to time, such other information concerning the Loan Parties as any
Lender or the Administrative Agent may reasonably request.
10.2 Books,
Records and Inspections.
Keep,
and cause each other Loan Party to keep, its books and records in accordance
with sound business practices sufficient to allow the preparation of financial
statements in accordance with GAAP; permit, and cause each other Loan Party
to
permit, any Lender or the Administrative Agent or any representative thereof
to
inspect the properties and operations of the Loan Parties; and permit, and
cause
each other Loan Party to permit, at any reasonable time and with reasonable
notice (or at any time without notice if an Event of Default exists), any Lender
or the Administrative Agent or any representative thereof to visit any or all
of
its offices, to discuss its financial matters with its officers and its
independent auditors (and the Borrowers hereby authorize such independent
auditors to discuss such financial matters with any Lender or the Administrative
Agent or any representative thereof), and to examine (and, at the expense of
the
Loan Parties, photocopy extracts from) any of its books or other records. All
such inspections and examinations by the Administrative Agent shall be at the
Borrowers’ expense.
10.3 Maintenance
of Property; Insurance.
(a)
Keep, and cause each other Loan Party to keep, all property useful and necessary
in the business of the Loan Parties in good working order and condition,
ordinary wear and tear excepted.
(b) Maintain,
and cause each other Loan Party to maintain, with responsible insurance
companies, such insurance coverage as may be required by any law or governmental
regulation or court decree or order applicable to it and such other insurance,
to such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated, but which shall insure against
all
risks and liabilities of the type identified on Schedule
9.16
and
shall have insured amounts no less than, and deductibles no higher than, those
set forth on such schedule or in such other amounts and deductibles deemed
reasonably acceptable to the Administrative Agent; and, upon request of the
Administrative Agent or any Lender, furnish to the Administrative Agent or
such
Lender a certificate setting forth in reasonable detail the nature and extent
of
all insurance maintained by the Loan Parties.
10.4 Compliance
with Laws; Payment of Taxes and Liabilities.
(a)
Comply, and cause each other Loan Party to comply, in all material respects
with
all applicable laws, rules, regulations, decrees, orders, judgments, licenses
and permits, except where failure to comply could not reasonably be expected
to
have a Material Adverse Effect; (b) without limiting clause
(a)
above,
ensure, and cause each other Loan Party to ensure, that no person who owns
a
controlling interest in or otherwise controls a Loan Party is or shall be (i)
listed on the Specially Designated Nationals and Blocked Person List maintained
by the Office of Foreign Assets Control (“OFAC”),
Department of the Treasury, and/or any other similar lists maintained by OFAC
pursuant to any authorizing statute, Executive Order or regulation or (ii)
a
person
designated
under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23,
2001), any related enabling legislation or any other similar Executive Orders,
(c) without limiting clause
(a)
above,
comply, and cause each other Loan Party to comply, with all applicable Bank
Secrecy Act (“BSA”)
and
anti-money laundering laws and regulations and (d) pay, and cause each other
Loan Party to pay, prior to delinquency, all taxes and other governmental
charges against it or any collateral, as well as claims of any kind which,
if
unpaid, could become a Lien on any of its property; provided
that the
foregoing shall not require any Loan Party to pay any such tax or charge so
long
as it shall contest the validity thereof in good faith by appropriate
proceedings and shall set aside on its books adequate reserves with respect
thereto in accordance with GAAP and, in the case of a claim which could become
a
Lien on any collateral, such contest proceedings shall stay the foreclosure
of
such Lien or the sale of any portion of the collateral to satisfy such
claim.
10.5 Maintenance
of Existence, etc.
Maintain
and preserve, and (subject to Section 11.5)
cause
each other Loan Party to maintain and preserve, (a) its existence and good
standing in the jurisdiction of its organization and (b) its qualification
to do
business and good standing in each jurisdiction where the nature of its business
makes such qualification necessary (other than such jurisdictions in which
the
failure to be qualified or in good standing could not reasonably be expected
to
have a Material Adverse Effect).
10.6 Use
of
Proceeds.
Use the
proceeds of the Loans, and the Letters of Credit, solely for working capital
purposes, for Acquisitions permitted by Section
11.5,
for
Capital Expenditures and for other general business purposes; and not use or
permit any proceeds of any Loan to be used, either directly or indirectly,
for
the purpose, whether immediate, incidental or ultimate, of “purchasing or
carrying” any Margin Stock.
10.7 Employee
Benefit Plans.
(a) Maintain,
and cause each other member of the Controlled Group to maintain, each Pension
Plan in substantial compliance with all applicable requirements of law and
regulations.
(b) Make,
and
cause each other member of the Controlled Group to make, on a timely basis,
all
required contributions to any Multiemployer Pension Plan.
(c) Not,
and
not permit any other member of the Controlled Group to (i) seek a waiver of
the
minimum funding standards of ERISA, (ii) terminate or withdraw from any Pension
Plan or Multiemployer Pension Plan or (iii) take any other action with respect
to any Pension Plan that would reasonably be expected to entitle the PBGC to
terminate, impose liability in respect of, or cause a trustee to be appointed
to
administer, any Pension Plan, unless the actions or events described in clauses
(i), (ii) and (iii) individually or in the aggregate would not have a Material
Adverse Effect.
10.8 Environmental
Matters.
If any
release or threatened release or other disposal of Hazardous Substances shall
occur or shall have occurred on any real property or any other assets of any
Loan Party, the Borrowers shall, or shall cause the applicable Loan Party to,
cause the
prompt
containment and removal of such Hazardous Substances and the remediation of
such
real property or other assets as necessary to comply with all Environmental
Laws
and to preserve the value of such real property or other assets. Without
limiting the generality of the foregoing, the Borrowers shall, and shall cause
each other Loan Party to, comply with any Federal or state judicial or
administrative order requiring the performance at any real property of any
Loan
Party of activities in response to the release or threatened release of a
Hazardous Substance. To the extent that the transportation of Hazardous
Substances is permitted by this Agreement, the Company shall, and shall cause
its Subsidiaries to, dispose of such Hazardous Substances, or of any other
wastes, only at licensed disposal facilities operating in compliance with
Environmental Laws.
10.9 Further
Assurances.
Take,
and cause each other Loan Party to take, such actions as are necessary or as
the
Administrative Agent or the Required Lenders may reasonably request from time
to
time to ensure that the Obligations are guaranteed by each Subsidiary of the
Company, including, upon the acquisition or creation thereof, any Subsidiary
acquired or created after the Closing Date (other than a Restricted Subsidiary),
in each case as the Administrative Agent may determine, including the execution
and delivery of guaranties and other authorizing documentation.
SECTION
11 NEGATIVE
COVENANTS
Until
the
expiration or termination of the Commitments and thereafter until all
Obligations hereunder and under the other Loan Documents are paid in full and
all Letters of Credit have been terminated, each Borrower agrees that, unless
at
any time the Required Lenders shall otherwise expressly consent in writing,
it
will:
11.1 Debt.
Not, and
not permit any other Loan Party to, create, incur, assume or suffer to exist
any
Debt, except:
(a) Obligations
under this Agreement and the other Loan Documents;
(b) Debt
secured by Liens permitted by Section
11.2(d),
and
extensions, renewals and refinancings thereof; provided
that the
aggregate amount of all such Debt at any time outstanding shall not exceed
$70,000,000;
(c) Debt
of
the Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic
Wholly-Owned Subsidiary to the Company or another domestic Wholly-Owned
Subsidiary;
(d) Subordinated
Debt;
(e) Hedging
Obligations incurred in favor of a Lender or an Affiliate thereof for bona
fide
hedging purposes and not for speculation;
(f) Debt
described on Schedule
11.1
and any
extension, renewal or refinancing thereof so long as the principal amount
thereof is not increased;
(g) the
Debt
to be Repaid (so long as such Debt is repaid on the Closing Date with the
proceeds of the initial Loans hereunder);
(h) Contingent
Liabilities arising with respect to customary indemnification obligations in
favor of sellers in connection with Acquisitions permitted under Section
11.5
and
purchasers in connection with dispositions permitted under Section
11.5;
and
(i) other
unsecured Debt, in addition to the Debt listed above.
11.2 Liens.
Not, and
not permit any other Loan Party to, create or permit to exist any Lien on any
of
its real or personal properties, assets or rights of whatsoever nature (whether
now owned or hereafter acquired), except:
(a) Liens
for
taxes or other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate
proceedings and, in each case, for which it maintains adequate
reserves;
(b) Liens
arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics and materialmen and other similar Liens imposed by
law
and (ii) Liens in the form of deposits or pledges incurred in connection with
worker’s compensation, unemployment compensation and other types of social
security (excluding Liens arising under ERISA) or in connection with surety
bonds, bids, performance bonds and similar obligations) for sums not overdue
or
being contested in good faith by appropriate proceedings and not involving
any
advances or borrowed money or the deferred purchase price of property or
services and, in each case, for which it maintains adequate
reserves;
(c) Liens
described on Schedule
11.2
as of
the Closing Date;
(d) subject
to the limitation set forth in Section
11.1(b),
(i)
Liens arising in connection with Capital Leases (and attaching only to the
property being leased), (ii) Liens existing on property at the time
of the
acquisition thereof by any Loan Party (and not created in contemplation of
such
acquisition) and (iii) Liens that constitute purchase money security interests
on any property securing debt incurred for the purpose of financing all or
any
part of the cost of acquiring such property, provided
that any
such Lien attaches to such property within 20 days of the acquisition thereof
and attaches solely to the property so acquired;
(e) attachments,
appeal bonds, judgments and other similar Liens, for sums not exceeding
$1,000,000 individually or $2,500,000 in the aggregate arising in connection
with court proceedings, provided
the
execution or other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith and by
appropriate proceedings;
(f) easements,
rights of way, restrictions, minor defects or irregularities in title and other
similar Liens not interfering in any material respect with the ordinary conduct
of the business of any Loan Party.
11.3 Intentionally
Omitted.
11.4 Restricted
Payments.
Not, and
not permit any other Loan Party to, at any time there exists an Event of Default
or if an Event of Default would be occasioned thereby, (a) make any distribution
to any holders of its Capital Securities, (b) purchase or redeem any of its
Capital Securities, (c) pay any management fees or similar fees to any of its
equityholders or any Affiliate thereof, (d) make any redemption, prepayment,
defeasance, repurchase or any other payment in respect of any Subordinated
Debt
or (e) set aside funds for any of the foregoing.
11.5 Mergers,
Consolidations, Sales.
Not, and
not permit any other Loan Party to, (a) be a party to any merger or
consolidation, or purchase or otherwise acquire all or substantially all of
the
assets or any Capital Securities of any class of, or any partnership or joint
venture interest in, any other Person, (b) sell, transfer, convey or lease
all
or any part of its assets or Capital Securities (including the sale of Capital
Securities of any Subsidiary) except for sales of inventory in the ordinary
course of business, or (c) sell or assign with or without recourse any
receivables; except, notwithstanding any of (a), (b), (c) above, for (i) any
such merger, consolidation, sale, transfer, conveyance, lease or assignment
of
or by any Wholly-Owned Subsidiary into the Company or into any other domestic
Wholly-Owned Subsidiary; (ii) any such purchase or other acquisition by the
Company or any domestic Wholly-Owned Subsidiary of the assets or Capital
Securities of any Wholly-Owned Subsidiary; (iii) the sale or other disposition
for fair market value of obsolete or worn out property or other property not
necessary for operations disposed of in the ordinary course of business; (iv)
sales and dispositions of trucks, truck-tractors, trailers and semi-trailers
in
the ordinary course of business, so long as the proceeds from such sale or
disposition, net of commissions and other reasonable and customary transaction
costs, fees and expenses properly attributable to such transaction and payable
in connection therewith to non-Affiliates, are applied to the purchase or lease
of replacement trucks, truck-tractors, tractors, trailers and semi-trailers
for
use in the ordinary course of business of the Loan Parties; (v) in addition
to
sales and dispositions permitted in (iii) and (iv) above, sales and dispositions
of assets (including the Capital Securities of Subsidiaries) (but excluding
accounts receivable) for at least fair market value (as determined by the Board
of Directors of the Company) so long as the net book value of all assets sold
or
otherwise disposed of in any Fiscal Year does not exceed 10% of the net book
value of the consolidated assets of the Loan Parties as of the last day of
the
preceding Fiscal Year; and (vi) any Acquisition by the Company or any domestic
Wholly-Owned Subsidiary where:
(A)
the
business or division acquired are for use, or the Person acquired is engaged,
in
the businesses engaged in by the Loan Parties on the Closing Date;
(B)
immediately before and after giving effect to such Acquisition, no Event of
Default or Unmatured Event of Default shall exist;
(C)
immediately after giving effect to such Acquisition, the Company is in pro
forma
compliance with all the financial ratios and restrictions set forth in
Section
11.14;
(D)
in
the case of the Acquisition of any Person, the board of directors or similar
governing body of such Person has approved such Acquisition;
(E)
reasonably prior to such Acquisition, the Administrative Agent shall have
received complete executed or conformed copies of each material document,
instrument and agreement to be executed in connection with such Acquisition
together with all lien search reports and lien release letters and other
documents as the Administrative Agent may require to evidence the termination
of
Liens on the assets or business to be acquired;
(F)
not
less than ten Business Days prior to such Acquisition, the Administrative Agent
shall have received an acquisition summary with respect to the Person and/or
business or division to be acquired, such summary to include a reasonably
detailed description thereof (including financial information) and operating
results (including financial statements for the most recent 12 month period
for
which they are available and as otherwise available), the terms and conditions,
including economic terms, of the proposed Acquisition, and the Company’s
calculation of pro forma compliance with the financial covenants provided in
Section
11.14;
(G)
the
Administrative Agent shall have approved the Company’s computation of the pro
forma compliance with the financial covenants provided in Section
11.14;
(H)
the
provisions of Section
11.10
have
been satisfied;
(I)
simultaneously with the closing of such Acquisition, the target company (if
such
Acquisition is structured as a purchase of equity) or the Loan Party (if such
Acquisition is structured as a purchase of assets or a merger and a Loan Party
is the surviving entity) executes and delivers to Administrative Agent an
unlimited Guaranty of the Obligations, or at the option of Administrative Agent
in Administrative Agent's absolute discretion, a joinder agreement satisfactory
to Administrative Agent in which such target company or surviving company,
and
their respective Subsidiaries becomes a borrower under this Agreement and
assumes primary, joint and several liability for the Obligations;
and
(J)
if
the Acquisition is structured as a merger, the Company or a Wholly-Subsidiary
is
the surviving entity.
11.6 Modification
of Organizational Documents.
Not
permit the charter, by-laws or other organizational documents of any Loan Party
to be amended or modified in any way which could reasonably be expected to
materially adversely affect the interests of the Lenders; not change, or allow
any Loan Party to change, its state of formation or its organizational
form.
11.7 Transactions
with Affiliates.
Not, and
not permit any other Loan Party to, enter into, or cause, suffer or permit
to
exist any transaction, arrangement or contract with any of its other Affiliates
(other than the Loan Parties) which is on terms which are less favorable than
are obtainable from any Person which is not one of its Affiliates.
11.8 Unconditional
Purchase Obligations.
Not, and
not permit any other Loan Party to, enter into or be a party to any contract
for
the purchase of materials, supplies or other property or services if such
contract requires that payment be made by it regardless of whether delivery
is
ever made of such materials, supplies or other property or
services.
11.9 Inconsistent
Agreements.
Not, and
not permit any other Loan Party to, enter into any agreement containing any
provision which would (a) be violated or breached by any borrowing by the
Borrowers hereunder or by the performance by any Loan Party of any of its
Obligations hereunder or under any other Loan Document, (b) prohibit any
Loan
Party from granting a Lien on any of its assets or (c) create or permit to
exist
or become effective any encumbrance or restriction on the ability of any
Subsidiary to (i) pay dividends or make other distributions to the Company
or
any other Subsidiary, or pay any Debt owed to the Company or any other
Subsidiary, (ii) make loans or advances to any Loan Party or (iii) transfer
any
of its assets or properties to any Loan Party, other than (A) customary
restrictions and conditions contained in agreements relating to the sale
of all
or a substantial part of the assets of any Subsidiary pending such sale,
provided
that
such restrictions and conditions apply only to the Subsidiary to be sold
and
such sale is permitted hereunder (B) restrictions or conditions imposed
by
any agreement relating to purchase money Debt, Capital Leases and other secured
Debt permitted by this Agreement if such restrictions or conditions apply
only
to the property or assets securing such Debt and (C) customary provisions
in leases and other contracts restricting the assignment
thereof.
11.10 Business
Activities; Issuance of Equity.
Not, and
not permit any other Loan Party to, engage in any line of business other than
the businesses engaged in on the date hereof and businesses reasonably related
thereto. Not, and not permit any other Loan Party to, issue any Capital
Securities other than (a) any issuance of shares of the Company’s common Capital
Securities or (b) any issuance by a Subsidiary to the Company or another
Subsidiary in accordance with Section
11.4.
11.11 Investments.
Not, and
not permit any other Loan Party to, make or permit to exist any Investment
in
any other Person, except the following:
(a) contributions
by the Company to the capital of any Wholly-Owned Subsidiary, or by any
Subsidiary to the capital of any other domestic Wholly-Owned Subsidiary, so
long
as the recipient of any such capital contribution has guaranteed the
Obligations;
(b) Investments
constituting Debt permitted by Section
11.1;
(c) Contingent
Liabilities constituting Debt permitted by Section
11.1
or Liens
permitted by Section
11.2;
(d) Cash
Equivalent Investments;
(e) bank
deposits in the ordinary course of business, provided
that the
aggregate amount of all such deposits (excluding amounts in payroll accounts
or
for accounts payable, in each case to the extent that checks have been issued
to
third parties) which are maintained with any bank other than a Lender shall
not
at any time exceed $2,000,000;
(f) Investments
in securities of Account Debtors received pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of such account
debtors;
(g) Investments
to consummate Acquisitions permitted by Section
11.5;
(h) Investments
listed on Schedule
11.11
as of
the Closing Date;
(i) other
bank deposits for a period not exceeding 120 days after the date of this
Agreement (or such longer period approved by the Administrative Agent not to
exceed 180 days from the date of this Agreement); and
(j) loans
and
advances to a Loan Party that has guaranteed the Obligations.
provided
that (x)
any Investment which when made complies with the requirements of the definition
of the term “Cash
Equivalent Investment”
may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements; (y) no Investment otherwise permitted
by clause (b), (c),
or
(g)
shall be
permitted to be made if, immediately before or after giving effect thereto,
any
Event of Default or Unmatured Event of Default exists.
11.12 [Intentionally
Omitted].
11.13 Fiscal
Year.
Not
change its Fiscal Year.
11.14 Financial
Covenants.
11.14.1 Fixed
Charge Coverage Ratio.
Not
permit the Fixed Charge Coverage Ratio for any Computation Period to be less
than 1.25 to 1.00 as of any Fiscal Quarter end.
11.14.2 Lease-Adjusted
Total Debt to EBITDAR Ratio.
Not
permit the Lease-Adjusted Total Debt to EBITDAR Ratio for any Computation Period
to exceed 3.00 to 1.00 as of any Fiscal Quarter end.
11.14.3 Tangible
Net Worth.
Not
permit the Tangible Net Worth of the Company and its Subsidiaries determined
on
a consolidated basis to be less than
Sixty-Three Million Four Hundred Eight-Three Thousand Two Hundred Dollars
($63,483,200) as of June 30, 2005, and thereafter increasing as of each Fiscal
Quarter end by an amount equal to Fifty Percent (50%) of Consolidated Net Income
(without reduction for any net losses) for such Fiscal Quarter plus
One
Hundred Percent (100%) of the proceeds received during such Fiscal Quarter
from
the issuance of any Capital Securities. This Tangible Net Worth covenant shall
be tested as of each Fiscal Quarter end.
11.14.4 Asset
Coverage Ratio.
Not
permit the Asset Coverage Ratio to be less than 1.25 to 1.00 at any
time.
SECTION
12 EFFECTIVENESS;
CONDITIONS OF LENDING, ETC.
The
obligation of each Lender to make its Loans and of the Issuing Lender to issue
Letters of Credit is subject to the following conditions precedent:
12.1 Initial
Credit Extension.
The
obligation of the Lenders to make the initial Loans and the obligation of the
Issuing Lender to issue its initial Letter of Credit (whichever first occurs)
is, in addition to the conditions precedent specified in Section
12.2,
subject
to the conditions precedent that (a) all Debt to be Repaid has been (or
concurrently with the initial borrowing will be) paid in full, and that all
agreements and instruments governing the Debt to be Repaid and that all Liens
securing such Debt to be Repaid have been (or concurrently with the initial
borrowing will be) terminated and (b) the Administrative Agent shall have
received all of the following, each duly executed and dated the Closing Date
(or
such earlier date as shall be satisfactory to the Administrative Agent), in
form
and substance satisfactory to the Administrative Agent (and the date on which
all such conditions precedent have been satisfied or waived in writing by the
Administrative Agent and the Lenders is called the “Closing
Date”):
12.1.1 Notes.
A Note
for each Lender.
12.1.2 Authorization
Documents.
For each
Loan Party, such Person’s (a) charter (or similar formation document), certified
by the appropriate governmental authority; (b) good standing certificates in
its
state of incorporation (or formation) and in each other state requested by
the
Administrative Agent; (c) bylaws (or similar governing document); (d)
resolutions of its board of directors (or similar governing body) approving
and
authorizing such Person’s execution, delivery and performance of the Loan
Documents to which it is party and the transactions contemplated thereby; and
(e) signature and incumbency certificates of its officers executing any of
the
Loan Documents (it being understood that the Administrative Agent and each
Lender may conclusively rely on each such certificate until formally advised
by
a like certificate of any changes therein), all certified by its secretary
or an
assistant secretary (or similar officer) as being in full force and effect
without modification.
12.1.3 Consents,
etc. Certified
copies of all documents evidencing any necessary corporate or partnership
action, consents and governmental approvals (if any) required for the execution,
delivery and performance by the Loan Parties of the documents referred to in
this Section 12.
12.1.4 Letter
of Direction.
A letter
of direction containing funds flow information with respect to the proceeds
of
the Loans on the Closing Date.
12.1.5 Guaranty.
A
counterpart of the Guaranty executed by each Loan Party (other than the
Borrowers), together with all instruments, transfer powers and other items
required to be delivered in connection therewith.
12.1.6 Opinions
of Counsel.
Opinions
of counsel for each Loan Party, in form and substance acceptable to the
Administrative Agent.
12.1.7 Insurance.
Evidence
of the existence of insurance required to be maintained pursuant to Section
10.3(b).
12.1.8 Payment
of Fees.
Evidence
of payment by the Borrowers of all accrued and unpaid fees, costs and expenses
to the extent then due and payable on the Closing Date, together with all
Attorney Costs of the Administrative Agent to the extent invoiced prior to
the
Closing Date, plus
such
additional amounts of Attorney Costs as shall constitute the Administrative
Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by the
Administrative Agent through the closing proceedings (provided
that
such estimate shall not thereafter preclude final settling of accounts between
the Borrowers and the Administrative Agent).
12.1.9 Search
Results; Lien Terminations.
Certified copies of Uniform Commercial Code search reports dated a date
reasonably near to the Closing Date, listing all effective financing statements
which name any Loan Party (under their present names and any previous names)
as
debtors, together with (a) copies of such financing statements, (b) payoff
letters evidencing repayment in full of all Debt to be Repaid, the termination
of all agreements relating thereto and the release of all Liens granted in
connection therewith, with Uniform Commercial Code or other appropriate
termination statements and documents effective to evidence the foregoing (other
than Liens permitted by Section
11.2)
and (c)
such other Uniform Commercial Code termination statements as the Administrative
Agent may reasonably request.
12.1.10 Closing
Certificate, Consents and Permits.
A
certificate executed by an officer of the Borrowers on behalf of the Borrowers
certifying the matters set forth in Section
12.2.1
as of
the Closing Date.
12.1.11 Other.
Such
other documents as the Administrative Agent or any Lender may reasonably
request.
12.2 Conditions.
The
obligation (a) of each Lender to make each Loan and (b) of the Issuing
Lender to issue each Letter of Credit is subject to the following further
conditions precedent that:
12.2.1 Compliance
with Warranties, No Default, etc.
Both
before and after giving effect to any borrowing and the issuance of any Letter
of Credit, the following statements shall be true and correct:
(a) the
representations and warranties of each Loan Party set forth in this Agreement
and the other Loan Documents shall be true and correct in all material respects
with the same effect as if then made (except to the extent stated to relate
to a
specific earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and
(b) no
Event
of Default or Unmatured Event of Default shall have then occurred and be
continuing.
12.2.2 Confirmatory
Certificate.
If
requested by the Administrative Agent or any Lender, the Administrative Agent
shall have received (in sufficient counterparts to provide one
to
each
Lender) a certificate dated the date of such requested Loan or Letter of Credit
and signed by a duly authorized representative of the Borrowers as to the
matters set out in Section
12.2.1
(it
being understood that each request by the Borrowers for the making of a Loan
or
the issuance of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrowers that the conditions precedent
set
forth in Section
12.2.1
will be
satisfied at the time of the making of such Loan or the issuance of such Letter
of Credit), together with such other documents as the Administrative Agent
or
any Lender may reasonably request in support thereof.
SECTION
13 EVENTS
OF
DEFAULT AND THEIR EFFECT.
13.1 Events
of Default.
Each of
the following shall constitute an Event of Default under this
Agreement:
13.1.1 Non-Payment
of the Loans, etc.
Default
in the payment when due of the principal of any Loan; or default, and
continuance thereof for five days, in the payment when due of any interest,
fee,
reimbursement obligation with respect to any Letter of Credit or other amount
payable by the Borrowers hereunder or under any other Loan
Document.
13.1.2 Non-Payment
of Other Debt.
Any
default shall occur under the terms applicable to any Debt of any Loan Party
in
an aggregate amount (for all such Debt so affected and including undrawn
committed or available amounts and amounts owing to all creditors under any
combined or syndicated credit arrangement) exceeding $500,000 and such default
shall (a) consist of the failure to pay such Debt when due, whether by
acceleration or otherwise, or (b) accelerate the maturity of such Debt or permit
the holder or holders thereof, or any trustee or agent for such holder or
holders, to cause such Debt to become due and payable (or require any Loan
Party
to purchase or redeem such Debt or post cash collateral in respect thereof)
prior to its expressed maturity.
13.1.3 Other
Material Obligations.
Default
in the payment when due, or in the performance or observance of, any material
obligation of, or condition agreed to by, any Loan Party with respect to any
material purchase or lease of goods or services where such default, singly
or in
the aggregate with all other such defaults, might reasonably be expected to
have
a Material Adverse Effect.
13.1.4 Bankruptcy,
Insolvency, etc.
Any Loan
Party becomes insolvent or generally fails to pay, or admits in writing its
inability or refusal to pay, debts as they become due; or any Loan Party applies
for, consents to, or acquiesces in the appointment of a trustee, receiver or
other custodian for such Loan Party or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of such application,
consent or acquiescence, a trustee, receiver or other custodian is appointed
for
any Loan Party or for a substantial part of the property of any thereof and
is
not discharged within 60 days; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency
law,
or any dissolution or liquidation proceeding, is commenced in respect of any
Loan Party, and if such case or proceeding is not commenced by such Loan Party,
it is consented to or acquiesced in by such Loan Party, or remains for 60 days
undismissed; or any Loan Party takes any action to authorize, or in furtherance
of, any of the foregoing.
13.1.5 Non-Compliance
with Loan Documents.
(a)
Failure by any Loan Party to comply with or to perform any covenant set forth
in
Sections
10.1.5, 10.3(b)
or
10.5
or
Section
11;
or
(b) failure by any Loan Party to comply with or to perform any other
provision of this Agreement or any other Loan Document (and not constituting
an
Event of Default under any other provision of this Section
13)
and
continuance of such failure described in this clause
(b)
for 30
days.
13.1.6 Representations;
Warranties.
Any
representation or warranty made by any Loan Party herein or any other Loan
Document is breached or is false or misleading in any material respect, or
any
schedule, certificate, financial statement, report, notice or other writing
furnished by any Loan Party to the Administrative Agent or any Lender in
connection herewith is false or misleading in any material respect on the date
as of which the facts therein set forth are stated or certified.
13.1.7 Pension
Plans.
(a) Any Person institutes steps to terminate a Pension Plan if as a
result
of such termination the Company or any member of the Controlled Group could
be
required to make a contribution to such Pension Plan, or could incur a liability
or obligation to such Pension Plan, in excess of $2,500,000; (b) a
contribution failure occurs with respect to any Pension Plan sufficient to
give
rise to a Lien under Section 302(f) of ERISA; (c) the Unfunded Liability
exceeds twenty percent of the Total Plan Liability, or (d) there shall
occur any withdrawal or partial withdrawal from a Multiemployer Pension Plan
and
the withdrawal liability (without unaccrued interest) to Multiemployer Pension
Plans as a result of such withdrawal (including any outstanding withdrawal
liability that the Company or any member of the Controlled Group have incurred
on the date of such withdrawal) exceeds $2,500,000.
13.1.8 Judgments.
Final
judgments which exceed $1,000,000 individually or $2,500,000 in the aggregate
shall be rendered against any Loan Party and shall not have been paid,
discharged or vacated or had execution thereof stayed pending appeal within
30
days after entry or filing of such judgments.
13.1.9 Invalidity
of Guaranty.
Any
Guaranty shall cease to be in full force and effect; or any Loan Party (or
any
Person by, through or on behalf of any Loan Party) shall contest in any manner
the validity, binding nature or enforceability of any Guaranty.
13.1.10 Invalidity
of Subordination Provisions, etc.
Any
subordination provision in any document or instrument governing Subordinated
Debt, or any subordination provision in any guaranty by any Subsidiary of any
Subordinated Debt, shall cease to be in full force and effect, or any Loan
Party
or any other Person (including the holder of any applicable Subordinated Debt)
shall contest in any manner the validity, binding nature or enforceability
of
any such provision.
13.1.11 Change
of Control.
A Change
of Control shall occur.
13.1.12 Material
Adverse Effect.
The
occurrence of any event having a Material Adverse Effect.
13.2 Effect
of Event of Default.
If any
Event of Default described in Section
13.1.4
shall
occur in respect of a Borrower, the Commitments shall immediately terminate
and
the Loans and all other Obligations hereunder shall become immediately due
and
payable and the Borrowers shall become immediately obligated to Cash
Collateralize all Letters of Credit, all without presentment, demand, protest
or
notice of any kind; and, if any other Event of Default shall occur and be
continuing, the Administrative Agent may (and, upon the written request of
the
Required Lenders shall) declare the Commitments to be terminated in whole or
in
part and/or declare all or any part of the Loans and all other Obligations
hereunder to be due and payable and/or demand that the Borrowers immediately
Cash Collateralize all or any Letters of Credit, whereupon the Commitments
shall
immediately terminate (or be reduced, as applicable) and/or the Loans and other
Obligations hereunder shall become immediately due and payable (in whole or
in
part, as applicable) and/or the Borrowers shall immediately become obligated
to
Cash Collateralize the Letters of Credit (all or any, as applicable), all
without presentment, demand, protest or notice of any kind. The Administrative
Agent shall promptly advise the Borrowers of any such declaration, but failure
to do so shall not impair the effect of such declaration. Any cash collateral
delivered hereunder shall be held by the Administrative Agent (without liability
for interest thereon) and applied to the Obligations arising in connection
with
any drawing under a Letter of Credit. After the expiration or termination of
all
Letters of Credit, such cash collateral shall be applied by the Administrative
Agent to any remaining Obligations hereunder and any excess shall be delivered
to the Borrowers or as a court of competent jurisdiction may
elect.
SECTION
14 THE
AGENT.
14.1 Appointment
and Authorization.
Each
Lender hereby irrevocably (subject to Section
14.10)
appoints, designates and authorizes the Administrative 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 Administrative Agent shall not have any duty or
responsibility except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, 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
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term “agent” herein and in other Loan Documents with reference to
the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.
14.2 Issuing
Lender.
The
Issuing Lender shall act on behalf of the Lenders (according to their Pro Rata
Shares) with respect to any Letters of Credit issued by it and the documents
associated therewith. The Issuing Lender shall have all of the benefits and
immunities (a) provided to the Administrative Agent in this Section
14
with
respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit issued by it or
proposed
to be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term “Administrative
Agent”, as used in this Section
14,
included the Issuing Lender with respect to such acts or omissions and (b)
as
additionally provided in this Agreement with respect to the Issuing
Lender.
14.3 Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Agreement or
any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent
shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
14.4 Exculpation
of Administrative Agent.
None of
the Administrative Agent nor any of its directors, officers, employees or agents
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except to the extent resulting from its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein as determined by a final, nonappealable judgment by a court
of
competent jurisdiction), or (b) be responsible in any manner to any Lender
or
participant for any recital, statement, representation or warranty made by
any
Loan Party or Affiliate of the Borrowers, 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
Administrative 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 the creation,
perfection or priority of any Lien or security interest therein), or for any
failure of a Borrower or any other party to any Loan Document to perform its
Obligations hereunder or thereunder. The Administrative Agent shall not 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 Borrowers or any of the Company’s Subsidiaries or
Affiliates.
14.5 Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any writing, communication, signature, resolution, representation,
notice, consent, certificate, electronic mail message, 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 Borrowers), independent accountants
and
other experts selected by the Administrative Agent. The Administrative 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 Required Lenders as it deems appropriate and, if it so
requests, confirmation from the Lenders of their obligation to indemnify the
Administrative Agent 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
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to
act
pursuant thereto shall be binding upon each Lender. For purposes of determining
compliance with the conditions specified in Section 12,
each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
written notice from such Lender prior to the proposed Closing Date specifying
its objection thereto.
14.6 Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default or Unmatured Event of Default except with
respect to defaults in the payment of principal, interest and fees required
to
be paid to the Administrative Agent for the account of the Lenders, unless
the
Administrative Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a “notice of
default”. The Administrative Agent will notify the Lenders of its receipt of any
such notice. The Administrative Agent shall take such action with respect to
such Event of Default or Unmatured Event of Default as may be requested by
the
Required Lenders in accordance with Section
13;
provided
that
unless and until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such action,
or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest
of
the Lenders.
14.7 Credit
Decision.
Each
Lender acknowledges that the Administrative Agent has not made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent and acceptance of any assignment or
review of the affairs of the Loan Parties, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender as to
any
matter, including whether the Administrative Agent has disclosed material
information in its possession. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent 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
Loan Parties, and made its own decision to enter into this Agreement and to
extend credit to the Borrowers hereunder. Each Lender also represents that
it
will, independently and without reliance upon the Administrative Agent 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 Borrowers. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative 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 or other
condition or creditworthiness of the Borrowers which may come into the
possession of the Administrative Agent.
14.8 Indemnification.
Whether
or not the transactions contemplated hereby are consummated, each Lender shall
indemnify upon demand the Administrative Agent and its
directors,
officers, employees and agents (to the extent not reimbursed by or on behalf
of
the Borrowers and without limiting the obligation of the Borrowers to do so),
according to its applicable Pro Rata Share, from and against any and all
Indemnified Liabilities (as hereinafter defined); provided
that no
Lender shall be liable for any payment to any such Person of any portion of
the
Indemnified Liabilities to the extent determined by a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from the
applicable Person’s own gross negligence or willful misconduct. No action taken
in accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs and Taxes) incurred by the
Administrative 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
Administrative Agent is not reimbursed for such expenses by or on behalf of
the
Borrowers. The undertaking in this Section shall survive repayment of the Loans,
cancellation of the Notes, expiration or termination of the Letters of Credit,
any foreclosure under, or modification, release or discharge of, any collateral,
termination of this Agreement and the resignation or replacement of the
Administrative Agent.
14.9 Administrative
Agent in Individual Capacity.
LaSalle
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 Loan Parties and Affiliates as though LaSalle were not the
Administrative Agent hereunder and without notice to or consent of any Lender.
Each Lender acknowledges that, pursuant to such activities, LaSalle or its
Affiliates may receive information regarding a Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of a Borrower or such Affiliate) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to their Loans (if any), LaSalle and its Affiliates shall have the
same
rights and powers under this Agreement as any other Lender and may exercise
the
same as though LaSalle were not the Administrative Agent, and the terms “Lender”
and “Lenders” include LaSalle and its Affiliates, to the extent applicable, in
their individual capacities.
14.10 Successor
Administrative Agent.
The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall, with (so long as no Event of Default exists) the consent
of the Borrowers (which shall not be unreasonably withheld or delayed), appoint
from among the Lenders a successor agent for the Lenders. If no successor agent
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrowers, 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 Administrative Agent and the term “Administrative Agent” shall mean
such successor agent, and the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent’s resignation hereunder as Administrative
Agent,
the provisions of this Section
14
and
Sections
15.5
and
15.16
shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor agent has
accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
14.11 Administrative
Agent May File Proofs of Claim.
In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrowers) shall be
entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to
file
and prove a claim for the whole amount of the principal and interest owing
and
unpaid in respect of the Loans, and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under
Sections
5,
15.5
and
15.17)
allowed
in such judicial proceedings; and
(b) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event
that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the
Administrative Agent under Sections 5, 15.5 and 15.17.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan
of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent to vote
in
respect of the claim of any Lender in any such proceeding.
14.12 Other
Agents; Arrangers and Managers.
None of
the Lenders or other Persons identified on the facing page or signature pages
of
this Agreement as a “syndication agent,”“documentation agent,”“co-agent,”“book
manager,”“lead manager,”“arranger,”“lead arranger” or “co-arranger”, if any,
shall have any right, power, obligation, liability, responsibility
or
duty
under this Agreement other than, in the case of such Lenders, those applicable
to all Lenders as such. Without limiting the foregoing, none of the Lenders
or
other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders or other Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
SECTION
15 GENERAL.
15.1 Waiver;
Amendments.
No delay
on the part of the Administrative Agent or any Lender in the exercise of any
right, power or remedy shall operate as a waiver thereof, nor shall any single
or partial exercise by any of them of any right, power or remedy preclude other
or further exercise thereof, or the exercise of any other right, power or
remedy. Except as provided in Section
6.5,
no
amendment, modification or waiver of, or consent with respect to, any provision
of this Agreement or the other Loan Documents shall in any event be effective
unless the same shall be in writing and acknowledged by Lenders having an
aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares
expressly designated herein with respect thereto or, in the absence of such
designation as to any provision of this Agreement, by the Required Lenders,
and
then any such amendment, modification, waiver or consent shall be effective
only
in the specific instance and for the specific purpose for which given. No
amendment, modification, waiver or consent shall (a) extend or increase the
Commitment of any Lender without the written consent of such Lender, (b) extend
the date scheduled for payment of any principal (excluding mandatory
prepayments) of or interest on the Loans or any fees payable hereunder without
the written consent of each Lender directly affected thereby, (c) reduce the
principal amount of any Loan, the rate of interest thereon or any fees payable
hereunder, without the consent of each Lender directly affected thereby (except
for periodic adjustments of interest rates and fees resulting from a change
in
the Applicable Margin as provided for in this Agreement); or (d) release any
party from its obligations under the Guaranty, change the definition of Required
Lenders, any provision of this Section
15.1
or
reduce the aggregate Pro Rata Share required to effect an amendment,
modification, waiver or consent, without, in each case, the written consent
of
all Lenders. No provision of Section
14
or other
provision of this Agreement affecting the Administrative Agent in its capacity
as such shall be amended, modified or waived without the consent of the
Administrative Agent. No provision of this Agreement relating to the rights
or
duties of the Issuing Lender in its capacity as such shall be amended, modified
or waived without the consent of the Issuing Lender. No provision of this
Agreement relating to the rights or duties of the Swing Line Lender in its
capacity as such shall be amended, modified or waived without the consent of
the
Swing Line Lender.
15.2 Confirmations.
The
Borrowers and each holder of a Note agree from time to time, upon written
request received by it from the other, to confirm to the other in writing (with
a copy of each such confirmation to the Administrative Agent) the aggregate
unpaid principal amount of the Loans then outstanding under such
Note.
15.3 Notices.
Except
as otherwise provided in Sections 2.2.2
and
2.2.3,
all
notices hereunder shall be in writing (including facsimile transmission) and
shall be sent to the applicable party at its address shown on Annex
B
or at
such other address as such party may, by
written
notice received by the other parties, have designated as its address for such
purpose. Notices sent by facsimile transmission shall be deemed to have been
given when sent; notices sent by mail shall be deemed to have been given three
Business Days after the date when sent by registered or certified mail, postage
prepaid; and notices sent by hand delivery or overnight courier service shall
be
deemed to have been given when received. For purposes of Sections
2.2.2
and
2.2.3,
the
Administrative Agent shall be entitled to rely on telephonic instructions from
any person that the Administrative Agent in good faith believes is an authorized
officer or employee of a Borrower, and the Borrowers shall hold the
Administrative Agent and each other Lender harmless from any loss, cost or
expense resulting from any such reliance.
15.4 Computations.
Where
the character or amount of any asset or liability or item of income
or
expense is required to be determined, or any consolidation or other accounting
computation is required to be made, for the purpose of this Agreement, such
determination or calculation shall, to the extent applicable and except as
otherwise specified in this Agreement, be made in accordance with GAAP,
consistently applied; provided
that if
the Borrowers notify the Administrative Agent that the Borrowers wish to amend
any covenant in Sections 10 or 11.14 (or any related definition) to eliminate
or
to take into account the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrowers that the
Required Lenders wish to amend Sections 10 or 11.14 (or any related definition)
for such purpose), then a Borrower’s compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
(or related definition) is amended in a manner satisfactory to the Borrowers
and
the Required Lenders.
15.5 Costs,
Expenses and Taxes.
The
Borrowers agree to pay on demand all reasonable out-of-pocket costs and expenses
of the Administrative Agent (including Attorney Costs and any Taxes) in
connection with the preparation, execution, syndication, delivery and
administration (including perfection and protection of any collateral and the
costs of Intralinks (or other similar service), if applicable) of this
Agreement, the other Loan Documents and all other documents provided for herein
or delivered or to be delivered hereunder or in connection herewith (including
any amendment, supplement or waiver to any Loan Document), whether or not the
transactions contemplated hereby or thereby shall be consummated, and all
reasonable out-of-pocket costs and expenses (including Attorney Costs and any
Taxes) incurred by the Administrative Agent and each Lender after an Event
of
Default in connection with the collection of the Obligations or the enforcement
of this Agreement the other Loan Documents or any such other documents or during
any workout, restructuring or negotiations in respect thereof. In addition,
the
Borrowers agree to pay, and to save the Administrative Agent and the Lenders
harmless from all liability for, any fees of a Borrower’s auditors in connection
with any reasonable exercise by the Administrative Agent and the Lenders of
their rights pursuant to Section
10.2.
All
Obligations provided for in this Section
15.5
shall
survive repayment of the Loans, cancellation of the Notes, expiration or
termination of the Letters of Credit and termination of this
Agreement.
15.6 Assignments;
Participations.
15.6.1 Assignments.
(a) Any
Lender may at any time assign to one or more Persons (any such Person, an
“Assignee”)
all or
any portion of such Lender’s Loans and Commitments, with the prior written
consent of the Administrative Agent, the Issuing Lender (for an assignment
of
the Revolving Loans and the Revolving Commitment) and, so long as no Event
of
Default exists, the Borrowers (which consents shall not be unreasonably withheld
or delayed and shall not be required for an assignment by a Lender to a Lender
or an Affiliate of a Lender). Except as the Administrative Agent may otherwise
agree, any such assignment shall be in a minimum aggregate amount equal to
$5,000,000 or, if less, the remaining Commitment and Loans held by the assigning
Lender. The Borrowers and the Administrative Agent shall be entitled to continue
to deal solely and directly with such Lender in connection with the interests
so
assigned to an Assignee until the Administrative Agent shall have received
and
accepted an effective assignment agreement in substantially the form of
Exhibit
D
hereto
(an “Assignment
Agreement”)
executed, delivered and fully completed by the applicable parties thereto and
a
processing fee of $3,500. No assignment may be made to any Person if at the
time
of such assignment the Borrowers would be obligated to pay any greater amount
under Sections
7.6
or
8
to the
Assignee than the Borrowers are then obligated to pay to the assigning Lender
under such Sections (and if any assignment is made in violation of the
foregoing, the Borrowers will not be required to pay such greater amounts).
Any
attempted assignment not made in accordance with this Section
15.6.1
shall be
treated as the sale of a participation under Section
15.6.2.
The
Borrowers shall be deemed to have granted their consent to any assignment
requiring their consent hereunder unless the Borrowers have expressly objected
to such assignment within three Business Days after notice thereof.
(b) From
and
after the date on which the conditions described above have been met, (i) such
Assignee shall be deemed automatically to have become a party hereto and, to
the
extent that rights and obligations hereunder have been assigned to such Assignee
pursuant to such Assignment Agreement, shall have the rights and obligations
of
a Lender hereunder and (ii) the assigning Lender, to the extent that
rights
and obligations hereunder have been assigned by it pursuant to such Assignment
Agreement, shall be released from its rights (other than its indemnification
rights) and obligations hereunder. Upon the request of the Assignee (and, as
applicable, the assigning Lender) pursuant to an effective Assignment Agreement,
the Borrowers shall execute and deliver to the Administrative Agent for delivery
to the Assignee (and, as applicable, the assigning Lender) a Note in the
principal amount of the Assignee’s Pro Rata Share of the Revolving Commitment
(and, as applicable, a Note in the principal amount of the Pro Rata Share of
the
Revolving Commitment retained by the assigning Lender). Each such Note shall
be
dated the effective date of such assignment. Upon receipt by the assigning
Lender of such Note, the assigning Lender shall return to the Borrowers any
prior Note held by it.
(c) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of
a
security interest; provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or assignee for
such
Lender as a party hereto.
15.6.2 Participations.
Any
Lender may at any time sell to one or more Persons participating interests
in
its Loans, Commitments or other interests hereunder (any such Person, a
“Participant”).
In
the event of a sale by a Lender of a participating interest to a Participant,
(a) such Lender’s obligations hereunder shall remain unchanged for all purposes,
(b) the Borrowers and the Administrative Agent shall continue to deal solely
and
directly with such Lender in connection with such Lender’s rights and
obligations hereunder and (c) all amounts payable by the Borrowers shall
be
determined as if such Lender had not sold such participation and shall be paid
directly to such Lender. No Participant shall have any direct or indirect voting
rights hereunder except with respect to any event described in Section 15.1
expressly requiring the unanimous vote of all Lenders or, as applicable, all
affected Lenders. Each Lender agrees to incorporate the requirements of the
preceding sentence into each participation agreement which such Lender enters
into with any Participant. The Borrowers agree that if amounts outstanding
under
this Agreement are due and payable (as a result of acceleration or otherwise),
each Participant shall be deemed to have the right of set-off in respect of
its
participating interest in amounts owing under this Agreement and with respect
to
any Letter of Credit to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement;
provided
that
such right of set-off shall be subject to the obligation of each Participant
to
share with the Lenders, and the Lenders agree to share with each Participant,
as
provided in Section
7.5.
The
Borrowers also agree that each Participant shall be entitled to the benefits
of
Section
7.6
or
8
as if it
were a Lender (provided
that on
the date of the participation no Participant shall be entitled to any greater
compensation pursuant to Section
7.6
or
8
than
would have been paid to the participating Lender on such date if no
participation had been sold and that each Participant complies with Section
7.6(d)
as if it
were an Assignee).
15.7 Register.
The
Administrative Agent shall maintain a copy of each Assignment Agreement
delivered and accepted by it and register (the “Register”)
for
the recordation of names and addresses of the Lenders and the Commitment of
each
Lender from time to time and whether such Lender is the original Lender or
the
Assignee. No assignment shall be effective unless and until the Assignment
Agreement is accepted and registered in the Register. All records of transfer
of
a Lender’s interest in the Register shall be conclusive, absent manifest error,
as to the ownership of the interests in the Loans. The Administrative Agent
shall not incur any liability of any kind with respect to any Lender with
respect to the maintenance of the Register.
15.8 GOVERNING
LAW.
THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED
BY
THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
TO
BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
15.9 Confidentiality.
As
required by federal law and the Administrative Agent's policies and practices,
the Administrative Agent may need to obtain, verify, and record certain
customer identification information and documentation in connection with opening
or maintaining accounts, or establishing or continuing to provide services.
The
Administrative Agent and each Lender agree to use commercially reasonable
efforts (equivalent to the efforts the Administrative Agent or such Lender
applies to maintain the confidentiality of its own
confidential
information) to maintain as confidential all information provided to them by
any
Loan Party and designated as confidential, except that the Administrative Agent
and each Lender may disclose such information (a) to Persons employed or engaged
by the Administrative Agent or such Lender in evaluating, approving, structuring
or administering the Loans and the Commitments; (b) to any assignee or
participant or potential assignee or participant that has agreed to comply
with
the covenant contained in this Section
15.9
(and any
such assignee or participant or potential assignee or participant may disclose
such information to Persons employed or engaged by them as described in clause
(a) above); (c) as required or requested by any federal or state regulatory
authority or examiner, or any insurance industry association, or as reasonably
believed by the Administrative Agent or such Lender to be compelled by any
court
decree, subpoena or legal or administrative order or process; (d) as, on the
advice of the Administrative Agent’s or such Lender’s counsel, is required by
law; (e) in connection with the exercise of any right or remedy under the Loan
Documents or in connection with any litigation to which the Administrative
Agent
or such Lender is a party; (f) to any nationally recognized rating agency that
requires access to information about a Lender’s investment portfolio in
connection with ratings issued with respect to such Lender; (g) to any Affiliate
of the Administrative Agent, the Issuing Lender or any other Lender who may
provide Bank Products to the Loan Parties; or (h) that ceases to be confidential
through no fault of the Administrative Agent or any Lender. Notwithstanding
the
foregoing, the Borrowers consent to the publication by the Administrative Agent
or any Lender of a tombstone or similar advertising material relating to the
financing transactions contemplated by this Agreement, and the Administrative
Agent reserves the right to provide to industry trade organizations information
necessary and customary for inclusion in league table measurements.
15.10 Severability.
Whenever
possible each provision of this Agreement shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Agreement. All obligations of the Borrowers and rights of the Administrative
Agent and the Lenders expressed herein or in any other Loan Document shall
be in
addition to and not in limitation of those provided by applicable
law.
15.11 Nature
of Remedies.
All
Obligations of the Borrowers and rights of the Administrative Agent and the
Lenders expressed herein or in any other Loan Document shall be in addition
to
and not in limitation of those provided by applicable law. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent
or
any Lender, any right, remedy, power or privilege hereunder, shall operate
as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof
or
the exercise of any other right, remedy, power or privilege.
15.12 Entire
Agreement.
This
Agreement, together with the other Loan Documents, embodies the entire agreement
and understanding among the parties hereto and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof (except as relates
to
the fees described in Section
5.3)
and any
prior arrangements made with respect to the payment by the Borrowers of (or
any
indemnification
for) any fees, costs or expenses payable to or incurred (or to be incurred)
by
or on behalf of the Administrative Agent or the Lenders.
15.13 Counterparts.
This
Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement. Receipt of an executed signature
page
to this Agreement by facsimile or other electronic transmission shall constitute
effective delivery thereof. Electronic records of executed Loan Documents
maintained by the Lenders shall deemed to be originals.
15.14 Successors
and Assigns.
This
Agreement shall be binding upon the Borrowers, the Lenders and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of the Borrowers, the Lenders and the Administrative Agent
and the successors and assigns of the Lenders and the Administrative Agent.
No
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents. The Borrowers may not assign or transfer
any
of its rights or Obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
15.15 Captions.
Section
captions used in this Agreement are for convenience only and shall not
affect the construction of this Agreement.
15.16 Customer
Identification - USA Patriot Act Notice.
Each
Lender and LaSalle (for itself and not on behalf of any other party) hereby
notifies the Loan Parties that, pursuant to the requirements of the USA Patriot
Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (the “Act”),
it is required to obtain, verify and record information that identifies the
Loan
Parties, which information includes the name and address of the Loan Parties
and
other information that will allow such Lender or LaSalle, as applicable, to
identify the Loan Parties in accordance with the Act.
15.17 INDEMNIFICATION
BY THE COMPANY.
IN CONSIDERATION OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
ADMINISTRATIVE AGENT AND THE LENDERS AND THE AGREEMENT TO EXTEND THE COMMITMENTS
PROVIDED HEREUNDER, THE COMPANY HEREBY AGREES TO INDEMNIFY, EXONERATE AND HOLD
THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH OF THE OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES AND AGENTS OF THE ADMINISTRATIVE AGENT AND EACH LENDER
(EACH A “LENDER PARTY”) FREE AND HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS,
CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES, DAMAGES AND EXPENSES, INCLUDING
ATTORNEY COSTS (COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”), INCURRED BY THE
LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING
TO
(A) ANY TENDER OFFER, MERGER, PURCHASE OF CAPITAL SECURITIES, PURCHASE OF ASSETS
OR OTHER SIMILAR TRANSACTION FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR
IN
PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF
ANY
OF THE LOANS, (B) THE USE, HANDLING, RELEASE, EMISSION, DISCHARGE,
TRANSPORTATION, STORAGE, TREATMENT OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT
ANY
PROPERTY OWNED OR LEASED BY ANY LOAN PARTY, (C) ANY VIOLATION OF ANY
ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT ANY PROPERTY OWNED OR LEASED
BY
ANY LOAN PARTY OR THE OPERATIONS CONDUCTED THEREON, (D) THE INVESTIGATION,
CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH ANY LOAN PARTY OR THEIR
RESPECTIVE PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY DISPOSED
OF
HAZARDOUS SUBSTANCES OR (E) THE EXECUTION, DELIVERY, PERFORMANCE OR
ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY ANY OF THE LENDER
PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED LIABILITIES ARISING ON ACCOUNT OF
THE
APPLICABLE LENDER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED
BY A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION. IF
AND
TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE UNENFORCEABLE FOR ANY
REASON, THE COMPANY HEREBY AGREES TO MAKE THE MAXIMUM CONTRIBUTION TO THE
PAYMENT AND SATISFACTION OF EACH OF THE INDEMNIFIED LIABILITIES WHICH IS
PERMISSIBLE UNDER APPLICABLE LAW. ALL OBLIGATIONS PROVIDED FOR IN THIS
SECTION
15.17
SHALL SURVIVE REPAYMENT OF THE LOANS, CANCELLATION OF THE NOTES, EXPIRATION
OR
TERMINATION OF THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY
MODIFICATION, RELEASE OR DISCHARGE OF, ANY COLLATERAL DOCUMENTS AND TERMINATION
OF THIS AGREEMENT.
15.18 Nonliability
of Lenders.
The
relationship between the Borrowers on the one hand and the Lenders and the
Administrative Agent on the other hand shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Loan Party arising out of or in connection
with
this Agreement or any of the other Loan Documents, and the relationship between
the Loan Parties, on the one hand, and the Administrative Agent and the Lenders,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor. Neither the Administrative Agent nor any Lender undertakes any
responsibility to any Loan Party to review or inform any Loan Party of any
matter in connection with any phase of any Loan Party’s business or operations.
Each Borrower agrees, on behalf of itself and each other Loan Party, that
neither the Administrative Agent nor any Lender shall have liability to any
Loan
Party (whether sounding in tort, contract or otherwise) for losses suffered
by
any Loan Party in connection with, arising out of, or in any way related to
the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence
or
willful misconduct of the party from which recovery is sought. NO
LENDER PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS
OF
ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR
INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL
ANY LENDER PARTY
HAVE
ANY LIABILITY WITH RESPECT TO, AND THE COMPANY ON BEHALF OF ITSELF AND EACH
OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL,
PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN
CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE).
Each
Borrower acknowledges that it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents to which
it is a party. No joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the
Lenders or among the Loan Parties and the Lenders.
15.19 JOINT
AND SEVERAL LIABILITY/CONTRIBUTION.
The
Borrowers’ Obligations hereunder shall be joint and several. Each Borrower
acknowledges that, together with the other Borrowers, that each Borrower is
part
of a consolidated group of companies and that its financial strength is
inter-dependent upon the financial strength of the consolidated group as a
whole. Each Borrower further acknowledges and agrees that the Obligations are
supported by adequate consideration, regardless of the amount of Loans or other
benefits actually received by such Borrower under the Loan Documents. In the
event a Borrower makes a payment under the Loan Documents which exceeds the
amount of funds actually received, directly or indirectly, by such Borrower
thereunder, such Borrower shall be entitled to contribution from the other
Borrower, pro-rata, on the basis of funds actually received and shall be
entitled to recover such amounts by available legal means, but only after full
payment of the Obligations has been made to the Lenders. Such right of
contribution shall be and remain at all times, junior, subordinate, inferior
and
subject to the rights and interests of the Lenders and the Administrative Agent
under the Loan Documents and shall not affect or impair in any way the joint,
several, personal, unconditional Obligations of each Borrower to fully pay
and
perform each of the Obligations.
15.20 FORUM
SELECTION AND CONSENT TO JURISDICTION.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED
THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
STATE OR FEDERAL COURT LOCATED IN THE STATE OF INDIANA. THE COMPANY HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE
OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF
ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS.
THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
15.21 WAIVER
OF JURY TRIAL.
EACH
OF THE COMPANY, THE
ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE,
ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[signature
pages follow]
The
parties hereto have caused this Agreement to be duly executed and delivered
by
their duly authorized officers as of the date first set forth
above.
|
“BORROWERS”
|
||
|
CELADON
GROUP, INC.
|
||
|
By:
|
/s/
Xxxx Will
|
|
|
Title:
|
Treasurer
|
|
|
CELADON
TRUCKING SERVICES, INC.
|
||
|
By:
|
/s/ Xxxxx Xxxx | |
|
Title:
|
Treasurer
|
|
|
TRUCKERSB2B,
INC.
|
||
|
By:
|
/s/ Xxxxx Xxxx | |
|
Title:
|
Treasurer
|
|
Signature
Page to Credit
Agreement
|
LASALLE
BANK NATIONAL ASSOCIATION, as
Administrative Agent, as Swing Line Lender, as Issuing Lender and
as a
Lender
|
||
|
By:
|
/s/ Xxxx Xxxxxxxxx | |
|
Title:
|
First
Vice President
|
|
Signature
Page to Credit
Agreement
|
FIFTH
THIRD BANK (CENTRAL INDIANA),
a
Lender
|
||
|
By:
|
/s/ /Xxxxx X'Xxxx | |
|
Title:
|
Vice
President
|
|
Signature
Page to Credit
Agreement
|
JPMORGAN
CHASE BANK, N.A.,
a
Lender
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
|
Title:
|
Vice
President
|
|
Signature
Page to Credit
Agreement
ANNEX
A
LENDERS
AND PRO RATA SHARES
|
Lender
|
Revolving
Commitment
Amount
|
Pro
Rata
Share*/
|
|
LaSalle
Bank National Association
|
$25,000,000**
|
50.000000000%
|
|
Fifth
Third Bank (Central Indiana)
|
$15,000,000
|
30.000000000%
|
|
JPMorgan
Chase Bank, N.A.
|
$10,000,000
|
20.000000000%
|
|
TOTALS
|
$50,000,000
|
100%
|
*/ Carry
out
to nine decimal places.
**/ Includes
Swing Line Commitment Amount of $5,000,000.
ANNEX
B
ADDRESSES
FOR NOTICES
BORROWERS:
CELADON
GROUP, INC.
CELADON
TRUCKING SERVICES, INC.
TRUCKERSBSB,
INC.
Xxx
Xxxxxxx Xxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx Will, Chief Financial Officer
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
LASALLE
BANK NATIONAL ASSOCIATION,
as
Administrative Agent, Issuing Lender and a Lender
Notices
of Borrowing , Conversion and Continuation
000
Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Notices
for Letter of Credit Issuance
000
Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx Xxxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
All
Other Notices
000
Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
JPMORGAN
CHASE BANK, N.A.
JPMorgan
Chase Bank, N.A
000
Xxxxxxxx Xxxxxx, XX0-0000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
FIFTH
THIRD BANK (CENTRAL INDIANA)
Fifth
Third Bank (Central Indiana)
000
X.
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxx X’Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
