REVOLVING LOAN AGREEMENT
Dated as of May 10, 2000
among
POWER-ONE, INC.,
INTERNATIONAL POWER DEVICES, INC.,
XXXXXXX HOLDING AG,
AND
HC POWER, INC.,
as the Borrowers
THE LENDERS HEREIN NAMED
and
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent and Lead Arranger
TABLE OF CONTENTS
PAGE
Article 1. DEFINITIONS AND ACCOUNTING TERMS................................1
1.1 Defined Terms...........................................................1
1.2 Use of Defined Terms...................................................33
1.3 Joinder of Powec.......................................................33
1.4 Accounting Terms.......................................................33
1.5 Rounding...............................................................34
1.6 Exhibits and Schedules.................................................34
1.7 References to "Borrower and its Subsidiaries"..........................34
1.8 Miscellaneous Terms....................................................34
Article 2. LOANS AND LETTERS OF CREDIT....................................35
2.1 Loans-General..........................................................35
2.2 Alternate Base Rate Loans..............................................38
2.3 Eurodollar Rate Loans..................................................38
2.4 Letters of Credit......................................................39
2.5 Voluntary Reduction of Revolving Commitment............................43
2.6 Administrative Agent's Right to Assume Funds Available for Advances....44
2.7 Collateral.............................................................44
Article 3. PAYMENTS AND FEES..............................................45
3.1 Principal and Interest.................................................45
3.2 Arranger and Agency Fees...............................................47
3.3 Commitment Fee.........................................................47
3.4 Letter of Credit Fees..................................................47
3.5 Increased Commitment Costs.............................................48
3.6 Eurodollar Costs and Related Matters...................................49
3.7 Late Payments..........................................................53
3.8 Computation of Interest and Fees.......................................53
3.9 Non-Banking Days.......................................................54
3.10 Manner and Treatment of Payments......................................54
3.11 Funding Sources.......................................................55
3.12 Failure to Charge Not Subsequent Waiver...............................56
3.13 Administrative Agent's Right to Assume Payments Will be Made..........56
3.14 Fee Determination Detail..............................................56
3.15 Survivability.........................................................56
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Article 4. REPRESENTATIONS AND WARRANTIES.................................57
4.1 Existence and Qualification; Power; Compliance With Laws...............57
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations.............................................57
4.3 No Governmental Approvals Required.....................................58
4.4 Subsidiaries...........................................................58
4.5 Financial Statements...................................................59
4.6 No Other Liabilities; No Material Adverse Changes......................59
4.7 Title to and Location of Property......................................60
4.8 Intangible Assets......................................................60
4.9 Public Utility Holding Company Act.....................................60
4.10 Litigation............................................................60
4.11 Binding Obligations...................................................61
4.12 No Default............................................................61
4.13 ERISA.................................................................61
4.14 Regulation U; Investment Company Act..................................61
4.15 Disclosure............................................................62
4.16 Tax Liability.........................................................62
4.17 Projections...........................................................62
4.18 Hazardous Materials...................................................62
4.19 Security Interest.....................................................63
Article 5. AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)........................................64
5.1 Payment of Taxes and Other Potential Liens.............................64
5.2 Preservation of Existence..............................................64
5.3 Maintenance of Properties..............................................64
5.4 Maintenance of Insurance...............................................65
5.5 Compliance With Laws...................................................65
5.6 Inspection Rights......................................................65
5.7 Keeping of Records and Books of Account................................65
5.8 Compliance With Agreements.............................................65
5.9 Use of Proceeds........................................................65
5.10 Hazardous Materials Laws...............................................65
5.11 Future Subsidiaries....................................................66
5.12 Intentionally Omitted..................................................66
5.13 Intentionally Omitted..................................................66
5.14 Syndication Process....................................................66
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Article 6. NEGATIVE COVENANTS.............................................67
6.1 Payment of Subordinated Obligations....................................67
6.2 Disposition of Property................................................67
6.3 Mergers................................................................67
6.4 Hostile Acquisitions...................................................68
6.5 Acquisitions...........................................................68
6.6 Distributions..........................................................68
6.7 ERISA..................................................................68
6.8 Change in Nature of Business...........................................68
6.9 Liens and Negative Pledges.............................................68
6.10 Indebtedness and Guaranty Obligations.................................69
6.11 Transactions with Affiliates..........................................70
6.12 Leverage Ratio........................................................70
6.13 Fixed Charge Coverage Ratio...........................................70
6.14 Net Worth.............................................................70
6.15 Investments...........................................................71
6.16 Capital Expenditures..................................................72
6.17 Intentionally Omitted.................................................72
6.18 Subsidiary Indebtedness...............................................72
6.19 Amendments to Subordinated Obligations................................72
6.20 Changes in Officers, Name, Location of Chief Executive Offices, Etc...72
Article 7. INFORMATION AND REPORTING REQUIREMENTS.........................73
7.1 Financial and Business Information.....................................73
7.2 Compliance Certificates................................................76
Article 8. CONDITIONS.....................................................77
8.1 Initial Advances.......................................................77
8.2 Any Advance............................................................79
Article 9. EVENTS OF DEFAULT AND REMEDIES UPON EVENT
OF DEFAULT.....................................................81
9.1 Events of Default......................................................81
9.2 Remedies Upon Event of Default.........................................83
Article 10. THE ADMINISTRATIVE AGENT.......................................87
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10.1 Appointment and Authorization.........................................87
10.2 Administrative Agent and Affiliates...................................87
10.3 Proportionate Interest in any Collateral..............................87
10.4 Lenders' Credit Decisions.............................................88
10.5 Action by Administrative Agent........................................88
10.6 Liability of Administrative Agent.....................................89
10.7 Indemnification.......................................................90
10.8 Successor Administrative Agent........................................91
10.9 No Obligations of the Borrowers.......................................92
Article 11. MISCELLANEOUS..................................................93
11.1 Cumulative Remedies; No Waiver........................................93
11.2 Amendments; Consents..................................................93
11.3 Costs, Expenses and Taxes.............................................94
11.4 Nature of Lenders' Obligations........................................95
11.5 Survival of Representations and Warranties............................95
11.6 Notices...............................................................96
11.7 Execution of Loan Documents...........................................96
11.8 Binding Effect; Assignment............................................96
11.9 Right of Setoff.......................................................99
11.10 Sharing of Setoffs..................................................100
11.11 Indemnity by the Borrowers..........................................100
11.12 Nonliability of the Lenders.........................................102
11.13 No Third Parties Benefitted.........................................103
11.14 Confidentiality.....................................................103
11.15 Further Assurances..................................................104
11.16 Integration.........................................................104
11.17 Governing Law; JURISDICTION AND VENUE...............................104
11.18 Severability of Provisions..........................................105
11.19 Headings............................................................105
11.20 Time of the Essence.................................................105
11.21 Foreign Lenders and Participants....................................105
11.22 Hazardous Material Indemnity........................................106
11.23 Waiver of Right to Trial by Jury....................................107
11.24 Purported Oral Amendments...........................................107
11.25 Joint and Several...................................................108
11.26 Conversion of Currencies............................................108
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EXHIBITS
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Note
D - Opinion
E - Pledge Agreement
F - Pricing Certificate
G - Request for Letter of Credit
H - Request for Loan
I - Subsidiary Guaranty
J - Swing Line Note
K - Joinder Agreement
L - Joint Borrower Provisions
SCHEDULES
1.1 Lender Commitments
2.4 Existing Letters of Credit
4.4 Subsidiaries
4.6 Material Adverse Changes
4.7A Existing Liens, Negative Pledges and Rights of Others
4.7B Location of Property
4.8 Trade Names
4.10 Material Litigation
4.18 Hazardous Materials Matters
6.10 Existing Indebtedness and Guaranty Obligations
6.15 Existing Investments
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REVOLVING LOAN AGREEMENT
Dated as of May 10, 2000
THIS REVOLVING LOAN AGREEMENT (this "Agreement") is entered
into by and among Power-One, Inc., a Delaware corporation ("Parent"),
International Power Devices, Inc., a Massachusetts corporation ("IPD"), Xxxxxxx
Holding AG, a corporation organized under the laws of Switzerland ("Xxxxxxx"),
and HC Power, Inc., a California corporation ("HC", and collectively with
Parent, IPD and Xxxxxxx, the "Borrowers"), each lender whose name is set forth
on the signature pages of this Agreement and each lender which may hereafter
become a party to this Agreement pursuant to Section 11.8 (collectively, the
"Lenders" and individually, a "Lender"), Union Bank of California, N.A., as
Administrative Agent, and Union Bank of California, N.A., as Lead Arranger, with
reference to the following facts:
RECITALS
A. The Borrowers have requested that the Lenders provide the
Borrowers with certain credit facilities.
B. The Lenders are willing to provide the Borrowers with such
credit facilities on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
Article 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the respective meanings set forth below:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the Closing Date, by which any of
the Borrowers and/or any Subsidiary of any of the Borrowers directly or
indirectly (a) acquires any ongoing business or all or substantially
all of the assets of any Person engaged in any ongoing business,
whether through a purchase of assets, a merger or otherwise, (b)
acquires control of securities of a Person engaged in an ongoing
business representing more than 50% of the ordinary voting power for
the election of directors or other governing position if the business
affairs of
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such Person are managed by a board of directors or other governing body
or (c) acquires control of more than 50% of the ownership interest in
any partnership, joint venture, limited liability company, business
trust or other Person engaged in an ongoing business that is not
managed by a board of directors or other governing body.
"ACQUISITION CONSIDERATION" means the consideration given by
the Parent or any of its Subsidiaries for an Acquisition, including but
not limited to the fair market value of any cash, Property, stock or
services given, the maximum amount that could reasonably be expected to
be paid pursuant to any earn-out contracts or agreements and the amount
of any Indebtedness in respect of debt for borrowed money, synthetic
leases and Capital Lease Obligations assumed or incurred by the Parent
or any of its Subsidiaries in connection with such Acquisition.
"ADMINISTRATIVE AGENT" means Union Bank of California, N.A.
when acting in its capacity as the Administrative Agent under any of
the Loan Documents, or any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative
Agent's address as set forth on the signature pages of this Agreement,
or such other address as the Administrative Agent hereafter may
designate by written notice to the Borrowers and the Lenders.
"ADVANCE" means any advance made or to be made by any Lender
to the Borrowers as provided in ARTICLE 2, and INCLUDES each Alternate
Base Rate Advance and each Eurodollar Rate Advance.
"AFFILIATE" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise); PROVIDED that, in any event, any Person that
owns, directly or indirectly, 10% or more of the securities having
ordinary voting power for the election of directors or other governing
body of a corporation that has more than 100 record holders of such
securities, or 10% or more of the partnership or other ownership
interests of any other Person that has more than 100 record holders of
such interests, will be deemed to be an Affiliate of such corporation,
partnership or other Person.
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"AGREEMENT" means this Revolving Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"AGREEMENT CURRENCY" has the meaning specified in Section
11.26 hereof.
"AGGREGATE EFFECTIVE AMOUNT" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the SUM of (a) the aggregate effective face amounts of all
such Letters of Credit not then paid by the Issuing Lender PLUS (b) the
aggregate amounts paid by the Issuing Lender under such Letters of
Credit not then reimbursed to the Issuing Lender by the Borrowers
pursuant to Section 2.4(d) and not the subject of Advances made
pursuant to Section 2.4(e).
"ALTERNATE BASE RATE" means, as of any date of determination,
the rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the HIGHER OF (a) the Prime Rate in effect on such date
and (b) the Federal Funds Rate in effect on such date plus 1/2 of 1%
(50 basis points).
"ALTERNATE BASE RATE ADVANCE" means an Advance made hereunder
and specified to be an Alternate Base Rate Advance in accordance with
ARTICLE 2.
"ALTERNATE BASE RATE LOAN" means a Loan made hereunder and
specified to be an Alternate Base Rate Loan in accordance with ARTICLE
2.
"APPLICABLE BASE RATE MARGIN" means, for each Pricing Period,
the interest rate margin set forth below (expressed in basis points per
annum) opposite the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Margin
------------- ------
I 100
II 75
III 50
IV 25
V 0
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"APPLICABLE COMMITMENT FEE RATE" means, for each Pricing
Period, the rate set forth below (expressed in basis points per annum)
opposite the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Commitment Fee
------------- --------------
I 50
II 50
III 37.5
IV 30
V 25
"APPLICABLE CURRENCY" means, as to any particular payment or
Advance, Dollars or the Approved Offshore Currency in which it is
denominated or is payable.
"APPLICABLE EURODOLLAR RATE MARGIN" means, for each Pricing
Period, the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that
Pricing Period:
Applicable
Pricing Level Margin
------------- ------
I 225
II 200
III 175
IV 150
V 125
"APPLICABLE PRICING LEVEL" means, for each Pricing
Period, the pricing level set forth below opposite the Leverage Ratio
as of the last day of
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the Fiscal Quarter most recently ended prior to the commencement of
that Pricing Period:
Pricing Level Leverage Ratio
------------- --------------
I Greater than or equal to 2.75 to 1.00
II Greater than or equal to 2.25 to 1.00,
but less than 2.75 to 1.00
III Greater than or equal to 1.75 to 1.00,
but less than 2.25 to 1.00
IV Greater than or equal to 1.00 to 1.00,
but less than 1.75 to 1.00
V Less than 1.00 to 1.00
PROVIDED that (i) in the event that Parent does not deliver a Pricing
Certificate with respect to any Pricing Period prior to the
commencement of such Pricing Period, then until such Pricing
Certificate is delivered, the Applicable Pricing Level for that Pricing
Period shall be Pricing Level I, and (ii) if any Pricing Certificate is
subsequently determined to be in error, then any resulting change in
the Applicable Pricing Level shall be made retroactively to the
beginning of the relevant Pricing Period.
"APPROVED OFFSHORE CURRENCY" means any Pound Sterling, Danish
Kroner, Norwegian Kroner, Finnish Markka, Swiss Francs, Canadian
Dollars, Euro or any other freely available currency (excluding Mexican
Pesos) certified by the Lenders to the Administrative Agent upon not
less than 10 Business Days' notice that in the opinion of all Lenders,
in their sole discretion, is at such time freely traded in the offshore
interbank foreign exchange markets and is freely transferable and
freely convertible into Dollars.
"APPROVED OFFSHORE CURRENCY BORROWING LIMIT" means the Dollar
Equivalent of $50,000,000.
"APPROVED OFFSHORE CURRENCY LENDING OFFICE" means as to each
Lender, its office or branch so designated by written notice to the
Borrowers and the Administrative Agent as its Approved Offshore
Currency Lending Office. If no Approved Offshore Currency Lending
Office is designated by a Lender its Approved Offshore Currency Lending
Office shall be its office at its address for purposes of notices
hereunder.
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"APPROVED OFFSHORE CURRENCY PAYMENT OFFICE" means as to each
Lender, its office or branch so designated by written notice to the
Borrowers and the Administrative Agent as its Approved Offshore
Currency Payment Office. If no Approved Offshore Currency Payment
Office is designated by a Lender, its Approved Offshore Currency
Payment Office shall be its office at its address for purposes of
notices hereunder.
"APPROVED OFFSHORE CURRENCY RATE" means, for any Loan to be
made in an Approved Offshore Currency for any Eurodollar Period
therefor, the interest rate per annum (rounded upward to the nearest
1/16th of one percent) determined by the Administrative Agent at
approximately 9:00 a.m. (London time), on the date which is two Banking
Days before the first day of such Eurodollar Period, to be the offered
quotation that appears on the Xxxxxx'x LIBOR01 page for deposits in the
applicable Approved Offshore Currency in the applicable Eurodollar
Market for such Approved Offshore Currency for a length of time
approximately equal to the Eurodollar Period for the Approved Offshore
Currency Advance sought by the Borrowers. If at least two such offered
quotations appear on the Xxxxxx'x LIBOR01 page, the Approved Offshore
Currency Rate shall be the arithmetic mean (rounded upward to the
nearest 1/16th of one percent) of such offered quotations, as
determined by the Administrative Agent. If the Xxxxxx'x LIBOR01 page is
not available or has been discontinued, the Approved Offshore Currency
Rate shall be the rate per annum that the Administrative Agent
determines to be the arithmetic mean (rounded as aforesaid) of the per
annum rates of interest at which deposits in the applicable Approved
Offshore Currency in an amount approximately equal to the principal
amount of, and for a length of time approximately equal to the
Eurodollar Period for, the Offshore Advance sought by the Borrowers are
offered to the Administrative Agent in immediately available funds in
the applicable Eurodollar Market for such Approved Offshore Currency at
11:00 a.m. (local time of such Eurodollar Market), on the date which is
two Business Days prior to the first day of a Eurodollar Period.
"ARRANGER" means Union Bank of California, N.A.
"AVAILABLE AMOUNT" means as of any date of determination, the
SUM of (a) the Commitment LESS (b) the aggregate principal amount
outstanding under the Notes.
"BANKING DAY" means any Monday, Tuesday, Wednesday, Thursday
or Friday, OTHER THAN a day on which banks are authorized or required
to be closed in California or New York.
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"CAPITAL EXPENDITURE" means any expenditure by any of the
Borrowers or any Subsidiary of a Borrower for or related to fixed
assets or purchased intangibles that is treated as a capital
expenditure under GAAP, INCLUDING any amount which is required to be
treated as an asset subject to a Capital Lease Obligation, but
EXCLUDING any such fixed assets or purchased intangibles acquired in
connection with a Permitted Acquisition. The amount of Capital
Expenditures in respect of fixed assets purchased or constructed by a
Borrower or any Subsidiary of a Borrower in any fiscal period shall be
NET OF (a) any net sales proceeds received during such fiscal period by
such Borrower or such Subsidiary for fixed assets sold by such Borrower
or such Subsidiary and (b) any casualty insurance proceeds received
during such fiscal period by such Borrower or such Subsidiary for
casualties to fixed assets and applied to the repair or replacement
thereof.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of
a Person under any leasing or similar arrangement which, in accordance
with GAAP, is classified as a capital lease.
"CASH" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with GAAP, consistently applied.
"CASH EQUIVALENTS" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year
after the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America or any political subdivision of
any such State or any public agency or instrumentality thereof given on
the date of such Investment a credit rating of at least Aa by Xxxxx'x
Investors Service, Inc. or AA by Standard & Poor's Rating Group (a
division of XxXxxx-Xxxx, Inc.), in each case due within one year from
the making of the Investment;
(c) certificates of deposit issued by, bank
deposits in, Eurodollar deposits through, bankers' acceptances of, and
repurchase agreements covering Government Securities executed by any
Lender or any bank incorporated under the Laws of the United States of
America, any State thereof or the District of Columbia and having on
the date of such Investment combined capital, surplus and undivided
profits of at least $250,000,000, or
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total assets of at least $5,000,000,000, in each case due within one
year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank
deposits in, Eurodollar deposits through, bankers' acceptances of, and
repurchase agreements covering Government Securities executed by, any
Lender or any branch or office located in the United States of America
of a bank incorporated under the Laws of any jurisdiction outside the
United States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due within one
year after the date of the making of the Investment;
(e) repurchase agreements covering Government
Securities executed by a broker or dealer registered under Section
15(b) of the Securities Exchange Act of 1934, as amended, having on the
date of the Investment capital of at least $50,000,000, due within 90
days after the date of the making of the Investment; PROVIDED that the
maker of the Investment receives written confirmation of the transfer
to it of record ownership of the Government Securities on the books of
a "primary dealer" in such Government Securities or on the books of
such registered broker or dealer, as soon as practicable after the
making of the Investment;
(f) readily marketable commercial paper or other
debt securities issued by corporations doing business in and
incorporated under the Laws of the United States of America or any
State thereof or of any corporation that is the holding company for a
Lender or a bank described in clause (c) or (d) above given on the date
of such Investment a credit rating of at least P-1 by Xxxxx'x Investors
Service, Inc. or A-1 by Standard & Poor's Rating Group (a division of
XxXxxx-Xxxx, Inc.), in each case due within one year after the date of
the making of the Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the Laws of the United States of America
or any State thereof (i) given on the date of such Investment a credit
rating of at least Aa by Xxxxx'x Investors Service, Inc. and AA by
Standard & Poor's Rating Group (a division of XxXxxx-Xxxx, Inc.), in
each case having an investment period not exceeding 50 days or (ii) to
the extent that investors therein have the benefit of a standby letter
of credit issued by a Lender or a bank described in clauses (c) or (d)
above; PROVIDED that (y) the amount of all such Investments issued by
the same issuer does not exceed $5,000,000 and (z) the aggregate amount
of all such Investments does not exceed $15,000,000;
-8-
(h) a readily redeemable "money market mutual
fund" sponsored by a bank described in clause (c) or (d) hereof, or a
registered broker or dealer described in clause (e) hereof, that has
and maintains an investment policy limiting its investments primarily
to instruments of the types described in clauses (a) through (g) hereof
and given on the date of such Investment a credit rating of at least Aa
by Xxxxx'x Investors Service, Inc. and AA by Standard & Poor's Rating
Group (a division of XxXxxx-Xxxx, Inc.); and
(i) corporate notes or bonds having an original
term to maturity of not more than one year issued by a corporation
incorporated under the Laws of the United States of America, or a
participation interest therein; PROVIDED that (i) commercial paper
issued by such corporation is given on the date of such Investment a
credit rating of at least Aa by Xxxxx'x Investors Service, Inc. and AA
by Standard & Poor's Rating Group (a division of XxXxxx-Xxxx, Inc.),
(ii) the amount of all such Investments issued by the same issuer does
not exceed $5,000,000 and (iii) the aggregate amount of all such
Investments does not exceed $15,000,000.
"CASH INCOME TAXES" means, with respect to any fiscal period,
taxes on or measured by the income of the Parent and its Subsidiaries
that are paid or currently payable in Cash by the Parent during that
fiscal period.
"CASH INTEREST EXPENSE" means Interest Expense that is paid or
currently payable in Cash.
"CERTIFICATE" means a certificate signed by a Senior Officer
or Responsible Official (as applicable) of the Person providing the
certificate.
"CHANGE IN CONTROL" means (a) any merger or consolidation of
the Parent with or into any Person (other than a merger or
consolidation in which the Parent is a surviving corporation) or any
sale, transfer or other conveyance, whether direct or indirect, of all
or substantially all of the assets of the Parent, on a consolidated
basis, in one transaction or a series of related transactions, (b) any
"person" or "group" (as such terms are used for purposes of Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended,
whether or not applicable) is or becomes the "beneficial owner",
directly or indirectly, of more than 50% of the total voting power in
the aggregate of all classes of capital stock of the Parent then
outstanding normally entitled to vote in elections of directors, or (c)
during any period of 24 consecutive months after the Closing Date,
individuals who at the beginning of such 24-month period constituted
the board of directors of the Parent (together with any new directors
-9-
whose election by such board of directors or whose nomination for
election by the shareholders of the Parent was approved by a vote of a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of the Parent
then in office.
"CLOSING DATE" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify the Borrowers and the Lenders of the
date that is the Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by the Pledge
Agreement.
"COMMERCIAL LETTER OF CREDIT" means each Letter of Credit
issued to support the purchase of goods by a Borrower which is
determined to be a commercial letter of credit by the Issuing Lender.
"COMMITMENT" means, subject to Section 2.5, $200,000,000. The
respective Pro Rata Shares of the Lenders with respect to the
Commitment are set forth in SCHEDULE 1.1.
"COMMITMENT ASSIGNMENT AND ACCEPTANCE" means a commitment
assignment and acceptance substantially in the form of EXHIBIT A.
"COMMON STOCK" means the common stock of a Borrower or its
successor.
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B, properly completed and signed by a Senior Officer of the
Parent.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any outstanding security issued by that Person or of any
material agreement, instrument or undertaking to which that Person is a
party or by which it or any of its Property is bound.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation,
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conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to
time in effect affecting the rights of creditors generally.
"DEFAULT" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1, or both,
would be an Event of Default.
"DEFAULT RATE" means the SUM OF (a) any incremental interest
rate then in effect pursuant to Section 3.1(d) PLUS (b) the interest
rate prescribed in Section 3.7.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Parent (for the benefit of Borrowers) with Union Bank of
California, N.A. or one of its Affiliates, as from time to time
designated by Parent by written notification to the Administrative
Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any
Eurodollar Rate Loan, the London Eurodollar Market.
"DISQUALIFIED STOCK" means any capital stock, warrants,
options or other rights to acquire capital stock (but excluding any
debt security which is conver tible, or exchangeable, for capital
stock), which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the
Maturity Date.
"DISPOSITION" means the sale, transfer or other disposition in
any single transaction or series of related transactions of any asset,
or group of related assets, of any Borrower or any Subsidiary of a
Borrower (a) which asset or assets constitute a line of business or
substantially all the assets of such Borrower or Subsidiary or (b) the
aggregate amount of the Net Cash Sales Proceeds of such assets is more
than $1,000,000, OTHER THAN (i) inventory or other assets sold or
otherwise disposed of in the ordinary course of business of such
Borrower or Subsidiary, (ii) equipment sold or otherwise disposed of
where substantially similar equipment in replacement thereof has
theretofore been acquired, or thereafter within 90 days is acquired, by
such Borrower or Subsidiary and (iii) obsolete or worn-out assets.
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"DISTRIBUTION" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity security or other
equity security issued by a Person, (a) the retirement, redemption,
purchase or other acquisition for Cash or for Property (other than
other equity securities) by such Person of any such security, (b) the
declaration or (without duplication) payment by such Person of any
dividend in Cash or in Property on or with respect to any such
security, (c) any Investment by such Person in the holder of 5% or more
of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security.
"DOLLAR ADVANCE" means an Advance denominated in Dollars.
"DOLLAR EQUIVALENT" means (a) in relation to any amount
denominated in Dollars, the amount thereof and (b) in relation to an
amount denominated in an Approved Offshore Currency, the amount of such
Dollars required to purchase the relevant stated amount of Approved
Offshore Currency at the Exchange Rate on the date of determination.
For the purposes of this Agreement, unless otherwise expressly stated
herein, the Dollar Equivalent principal amount of any Advance or Letter
of Credit shall be determined on the date on which the Request for Loan
or Request for Letter of Credit is received with respect thereto.
"DOLLARS" or "$" means United States of America dollars.
"DOMESTIC SUBSIDIARY" means a Subsidiary of a Borrower that is
not a Foreign Subsidiary.
"EBITDA" means, with respect to any fiscal period, the SUM OF
(a) Net Income for that period, PLUS (b) any non-operating
non-recurring loss reflected in such Net Income, MINUS (c) any
non-operating non-recurring gain reflected in such Net Income, PLUS (d)
Interest Expense of the Parent and its Subsidiaries for that period,
PLUS (e) the aggregate amount of federal and state tax expense on or
measured by income of the Parent and its Subsidiaries for that period
(whether or not payable during that period), PLUS (f) to the extent
included in such fiscal period, a one-time charge for the acceleration
of stock grants associated with the Acquisition of HC, not to exceed
$8,000,000 in aggregate amount, PLUS (g) to the extent included in such
fiscal period, a one-time charge for acquisition costs associated with
the Acquisition of HC, not to exceed $2,400,000 in aggregate amount,
PLUS (h) to the extent included in such fiscal period, a one-
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time charge for acquired in-process research and development related
to IPD not to exceed $3,300,000 in aggregate amount, PLUS (i) to the
extent included in such fiscal period, a one-time charge for the
inventory write-up with respect to purchase accounting adjustments
related to the Acquisition of IPD and Xxxxxxx not to exceed
$3,700,000 in aggregate amount, PLUS (j) a one-time write-off with
respect to the Calex license not to exceed $1,000,000 in aggregate
amount, MINUS (k) the aggregate amount of federal and state credits
against taxes on or measured by income of the Parent and its
Subsidiaries for that period (whether or not usable during that
period), PLUS (l) depreciation, amortization and all other non-cash
expenses of the Parent and its Subsidiaries for that period, in each
case as determined in accordance with GAAP, consistently applied.
"ELIGIBLE ASSIGNEE" means (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender, (c) any commercial bank
having total assets of $1,000,000,000 or more, (d) any (i) savings
bank, savings and loan association or similar financial institution or
(ii) insurance company engaged in the business of writing insurance
which, in either case (A) has total assets of $1,000,000,000 or more,
(B) is engaged in the business of lending money and extending credit
under credit facilities substantially similar to those extended under
this Agreement and (C) is operationally and procedurally able to meet
the obligations of a Lender hereunder to the same degree as a
commercial bank and (e) any other financial institution (INCLUDING a
mutual fund or other fund) having total assets of $1,000,000,000 or
more which meets the requirements set forth in subclauses (B) and (C)
of clause (d) above; PROVIDED that each Eligible Assignee must either
(aa) be organized under the Laws of the United States of America, any
State thereof or the District of Columbia or (bb) be organized under
the Laws of the Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of such a country, and (i) act hereunder through a branch,
agency or funding office located in the United States of America and
(ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.
"EMU" means Economic and Monetary Union as contemplated in the
Treaty.
"EMU LEGISLATION" means (a) the Treaty and (b) legislative
measures of the European Council for the introduction of, changeover
to, or operation of, the Euro, in each case as amended or supplemented
from time to time.
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"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"ERISA AFFILIATE" means each Person (whether or not
incorporated) which is required to be aggregated with any Borrower
pursuant to Section 414 of the Code.
"EURODOLLAR BANKING DAY" means any Banking Day on which
dealings in Dollar deposits are conducted by and among banks in the
Designated Eurodollar Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its
office or branch so designated by written notice to the Borrowers and
the Administrative Agent as its Eurodollar Lending Office. If no
Eurodollar Lending Office is designated by a Lender, its Eurodollar
Lending Office shall be its office at its address for purposes of
notices hereunder.
"EURODOLLAR MARKET" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any
Governmental Agency having jurisdiction over any Lender.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan,
the period commencing on the date specified by the Borrowers pursuant
to Section 2.1(c) and ending 1, 2, 3 or 6 months (or, with the written
consent of all of the Lenders, any other period) thereafter, as
specified by the Borrowers in the applicable Request for Loan; PROVIDED
that:
(a) The first day of any Eurodollar Period shall
be a Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise
end on a day that is not a Eurodollar Banking Day shall be
extended to the immediately succeeding Eurodollar Banking Day
unless such Eurodollar Banking Day falls in another calendar
month, in which case such Eurodollar Period shall end on the
immediately preceding Eurodollar Banking Day; and
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(c) No Eurodollar Period shall extend beyond the
Maturity Date.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars are
offered to the Administrative Agent in the Designated Eurodollar Market
at or about 11:00 a.m. local time in the Designated Eurodollar Market,
two (2) Eurodollar Banking Days before the first day of the applicable
Eurodollar Period in an aggregate amount approximately equal to the
amount of the Advance to be made by the Administrative Agent with
respect to such Eurodollar Rate Loan and for a period of time
comparable to the number of days in the applicable Eurodollar Period.
"EURODOLLAR RATE ADVANCE" means an Advance made hereunder and
denominated in an Approved Offshore Currency and any other Advance made
hereunder and specified to be a Eurodollar Rate Advance in accordance
with ARTICLE 2.
"EURODOLLAR RATE LOAN" means a Loan made hereunder and
denominated in an Approved Offshore Currency and any other Loan made
hereunder and specified to be a Eurodollar Rate Loan in accordance with
ARTICLE 2.
"EVENT OF DEFAULT" shall have the meaning provided in Section
9.1.
"EXCHANGE RATE" means with respect to any Approved Offshore
Currency on a particular date, the rate at which such Approved Offshore
Currency may be exchanged into Dollars, as set forth on such date on
the Reuters currency page for exchanges of such Approved Offshore
Currency into Dollars. In the event that such rate does not appear on
any Reuters currency page, the Exchange Rate with respect to such
Approved Offshore Currency shall be determined by reference to such
other publicly available service for displaying exchange rates as may
be agreed upon by the Administrative Agent and the Borrowers or, in the
absence of such agreement, such Exchange Rate shall instead be the
arithmetic mean of the spot rates of exchange for the Administrative
Agent and two other money center banks in the interbank market where
the foreign currency exchange operations of the Administrative Agent
and such two other money center banks in respect of such Approved
Offshore Currency are then being conducted, at or about 10:00 a.m.
local time, for the purchase of Dollars with such Approved Offshore
Currency, for delivery two Business Days later; PROVIDED, HOWEVER, that
if at the time of any such
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determination, for any reason, no such spot rate is being quoted by the
Administrative Agent, the Administrative Agent may use any reasonable
method it deems applicable to determine its respective spot rate, and
such determination shall be prima facie evidence of such rate.
"EXISTING CREDIT AGREEMENT" means the $65,000,000 Second
Amended and Restated Credit Agreement dated as of August 12, 1999 among
the Parent, certain Subsidiaries of the Parent, the lenders identified
therein, Bank of America, N.A., as Administrative Agent and Union Bank
of California, N.A., as Co-Agent, as amended.
"EXISTING LETTERS OF CREDIT" means the letters of credit, if
any, outstanding on the Closing Date and listed on SCHEDULE 2.4.
"FEDERAL FUNDS RATE" means, as of any date of determination,
the rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such
date will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. Government
Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite
3:30 p.m. Quotation") for such date under the caption "Federal Funds
Effective Rate". If on any relevant date the appropriate rate for such
date is not yet published in either H.15(519) or the Composite 3:30
p.m. Quotations, the rate for such date will be the arithmetic mean of
the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that date by each of three
leading brokers of Federal funds transactions in New York City selected
by the Administrative Agent. For purposes of this Agreement, any change
in the Alternate Base Rate due to a change in the Federal Funds Rate
shall be effective as of the opening of business on the effective date
of such change.
"FISCAL YEAR" means each period of 52 or 53 weeks ending on
the Sunday closest to December 31 of each year.
"FIXED CHARGE COVERAGE RATIO" means, as of the last day of any
fiscal quarter, calculated for the Parent and its Subsidiaries on a
consolidated basis, the RATIO OF (a) EBITDA for the fiscal period
consisting of the four (4) consecutive fiscal quarters ended on that
date LESS federal and state income tax
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expense TO (b) the SUM OF, without duplication, (i) Interest Expense of
the Parent and its Subsidiaries for such fiscal period, PLUS (ii)
scheduled principal payments in respect of Indebtedness during such
period.
"FOREIGN SUBSIDIARY" means a Subsidiary of a Borrower that (a)
is organized under the Laws of a country (or political subdivision
thereof) OTHER THAN the United States of America and (b) holds all or
substantially all of its assets outside the United States of America.
"GAAP" means, as of any date of determination, accounting
principles (a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (b) set forth as generally
accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then approved by such other
entity as may be approved by a significant segment of the accounting
profession in the United States of America. The term "CONSISTENTLY
APPLIED," as used in connection therewith, means that the accounting
principles applied are consistent in all material respects with those
applied at prior dates or for prior periods.
"GOVERNMENT SECURITIES" means readily marketable (a) direct
full faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United
States of America and (b) obligations of an agency or instrumentality
of, or corporation owned, controlled or sponsored by, the United States
of America that are generally considered in the securities industry to
be implicit obligations of the United States of America.
"GOVERNMENTAL AGENCY" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality or
public body or (c) any court or administrative tribunal of competent
jurisdiction.
"GUARANTY OBLIGATION" means, as to any Person, any (a)
guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person
to an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person,
whether direct, indirect or contingent, INCLUDING any purchase or
repurchase agreement covering such obligation or any collateral
security therefor, any agreement to provide funds (by means of loans,
capital contributions or otherwise) to such other Person, any agreement
to support the
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solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; PROVIDED, HOWEVER, that
the term Guaranty Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business and customary indemnities given in connection with asset sales
in the ordinary course of business. The amount of any Guaranty
Obligation in respect of Indebtedness shall be deemed to be an amount
equal to the stated or determinable amount of the related Indebtedness
(unless the Guaranty Obligation is limited by its terms to a lesser
amount, in which case to the extent of such amount) or, if not stated
or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith. The amount
of any other Guaranty Obligation shall be deemed to be zero unless and
until the amount thereof has been (or in accordance with Financial
Accounting Standards Board Statement No. 5 should be) quantified and
reflected or disclosed in the consolidated financial statements (or
notes thereto) of the Parent.
"HAZARDOUS MATERIALS" means substances defined as
"hazardous substances" pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section
9601 et seq., or as "hazardous", "toxic" or "pollutant" substances
or as "solid waste" pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or
as "friable asbestos" pursuant to the Toxic Substances Control Act,
15 U.S.C. Section 2601 et seq. or any other applicable Hazardous
Materials Law, in each case as such Laws are amended from time to
time.
"HAZARDOUS MATERIALS LAWS" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials applicable
to any of the Real Property.
"HC" has the meaning specified in the introduction to this
Agreement.
"INDEBTEDNESS" means, as to any Person (without duplication),
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (EXCLUDING trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms and accrued liabilities incurred in the ordinary course of
business), INCLUDING any Guaranty Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (a)
that is non-recourse to the credit of such
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Person but is secured by assets of such Person, to the extent of the
fair market value of such assets as determined in good faith by such
Person, (c) Capital Lease Obligations of such Person, (d) indebtedness
of such Person arising under bankers' acceptance facilities or under
facilities for the discount of accounts receivable of such Person, (e)
any direct or contingent obligations of such Person under letters of
credit issued for the account of such Person and (f) any net
obligations of such Person under Interest Rate Protection Agreements.
"INTANGIBLE ASSETS" means assets that are considered
intangible assets under GAAP, INCLUDING customer lists, goodwill,
covenants not to compete, copyrights, trade names, trademarks, patents
and license rights with respect to intellectual property.
"INTEREST EXPENSE" means, with respect to any Person and as of
the last day of any fiscal period, the SUM OF (a) all interest, fees,
charges and related expenses (in each case as such expenses are
calculated according to GAAP) paid or payable (without duplication) for
that fiscal period by that Person to a lender in connection with
borrowed money (INCLUDING any obligations for fees, charges and related
expenses payable to the issuer of any letter of credit) or the deferred
purchase price of assets that are considered "interest expense" under
GAAP PLUS (b) the portion of rent paid or payable (without duplication)
for that fiscal period by that Person under Capital Lease Obligations
that should be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"INTEREST RATE PROTECTION AGREEMENT" means a written agreement
between a Borrower and one or more financial institutions providing for
"swap", "cap", "collar" or other interest rate protection with respect
to any Indebtedness.
"INVESTMENT" means, when used in connection with any Person,
any investment by or of that Person, whether by means of purchase or
other acquisition of stock or other securities of any other Person or
by means of a loan, advance creating a debt, capital contribution,
guaranty or other debt or equity participation or interest in any other
Person, INCLUDING any partnership and joint venture interests of such
Person. The amount of any Investment shall be the amount actually
invested (MINUS any return of capital with respect to such Investment
which has actually been received in Cash or has been converted into
Cash), without adjustment for subsequent increases or decreases in the
value of such Investment.
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"IPD" has the meaning specified in the introduction to this
Agreement.
"ISSUING LENDER" means Union Bank of California, N.A.
"JOINT VENTURE" means any Investment by a Borrower in any
Person that is not a Wholly-Owned Subsidiary of such Borrower, which
Person is engaged in the same or a similar line of business as such
Borrower.
"LAWS" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
"LENDER" means (a) initially, each lender whose name is set
forth in the signature pages of this Agreement and (b) thereafter, each
lender from time to time a party to this Agreement, including each
lender which may hereafter become a party to this Agreement pursuant to
Section 11.8.
"LETTERS OF CREDIT" means (a) the Existing Letters of Credit
and (b) any of the Commercial Letters of Credit or Standby Letters of
Credit issued by the Issuing Lender under the Commitment pursuant to
Section 2.4, either as originally issued or as the same may be
supplemented, modified, amended, renewed, extended or supplanted.
"LEVERAGE RATIO" means, as of the last day of any fiscal
quarter, determined for the Parent and its Subsidiaries on a
consolidated basis, the RATIO OF (a) all Indebtedness of the Parent and
its Subsidiaries on that date TO (b) EBITDA for the fiscal period
consisting of the four (4) consecutive fiscal quarters ended on that
date. For purpose of calculation of the Leverage Ratio only, EBITDA
shall be measured on a pro forma basis and each Person or line of
business that was acquired or disposed of during the four Fiscal
Quarter period ending on or before such date of calculation shall be
deemed to have been acquired or disposed of on the first day of such
period.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance,
lien or similar charge of any kind, whether voluntarily incurred or
arising by operation of Law or otherwise, affecting any Property,
INCLUDING any conditional sale or other title retention agreement, any
lease in the nature of a security interest, and/or the filing of any
financing statement (OTHER THAN a precautionary financing statement
with respect to a lease that is not in the nature of a security
interest) under the
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Uniform Commercial Code or comparable Law of any jurisdiction with
respect to any Property.
"LOAN" means the aggregate of the Advances made at any one
time by the Lenders pursuant to Section 2.1.
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Swing Line Note, the Subsidiary Guaranty, the Pledge
Agreement, and any other agreements of any type or nature hereafter
executed and delivered by any of the Borrowers or any of the Subsidiary
Guarantors to the Administrative Agent or to any Lender in any way
relating to or in furtherance of this Agreement, in each case either
as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"MARGIN STOCK" means "margin stock", as such term is defined
in Regulation U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has had or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability
of any Loan Document, (b) has been or could reasonably be expected to
be material and adverse to the business or condition (financial or
otherwise) of the Parent and its Subsidiaries, taken as a whole or (c)
has materially impaired or could reasonably be expected to materially
impair the ability of the Borrowers to perform the Obligations.
"MATERIAL SUBSIDIARY" means each Subsidiary of the Parent or
of a Subsidiary of the Parent (a) the gross revenues of which for the
then most recently completed four Fiscal Quarters constituted or, with
respect to any such Subsidiary acquired during such Fiscal Quarters,
would have constituted (had the gross revenues of such Subsidiary been
included for such period) 5% or more of the consolidated gross revenues
of the Parent and its Subsidiaries for such period or (b) the assets of
which as of the end of any fiscal quarter constituted 5% or more of the
consolidated assets of the Parent and its Subsidiaries as of the end of
such Fiscal Quarter. For purposes of this Agreement, each of Xxxxxxx,
Xxxxxxx XX, Xxxxxxx Production AG, IPD, HC, Power-Electronics, Inc.,
Poder Uno de Mexico, S.A. de C.V. and, following the Powec Acquisition,
Powec shall at all times be deemed to be a Material Subsidiary.
"MATURITY DATE" means the third anniversary of the Closing
Date.
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"XXXXXXX" has the meaning specified in the introduction to
this Agreement.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA to which a Borrower or
any of its ERISA Affiliates contributes or is obligated to contribute.
"NEGATIVE PLEDGE" means a Contractual Obligation which
contains a covenant binding on a Borrower or any of its Subsidiaries
that prohibits Liens on any of its Property, OTHER THAN (a) any such
covenant contained in a Contractual Obligation granting or relating to
a particular Lien which affects only the Property that is the subject
of such Lien and (b) any such covenant that does not apply to Liens
securing the Obligations.
"NET CASH ISSUANCE PROCEEDS" means, with respect to the
issuance of any debt security or equity security by a Borrower or any
of its Subsidiaries, the Cash proceeds received by or for the account
of such Borrower or Subsidiary in consideration of such issuance NET OF
(a) underwriting discounts and commissions actually paid to any Person
not an Affiliate of such Borrower and (b) professional fees and
disbursements actually paid in connection therewith.
"NET CASH SALES PROCEEDS" means, with respect to any
Disposition, the SUM OF (a) the Cash proceeds received by or for the
account of the Parent and its Subsidiaries from such Disposition PLUS
(b) the amount of Cash received by or for the account of the Parent and
its Subsidiaries upon the sale, collection or other liquidation of any
proceeds that are not Cash from such Disposition, in each case NET OF
(i) any amount required to be paid to any Person owning an interest in
the assets disposed of, (ii) any amount applied to the repayment of
Indebtedness secured by a Lien permitted under Section 6.9 on the asset
disposed of, (iii) any transfer, income or other taxes payable as a
result of such Disposition, (iv) professional fees and expenses, fees
due to any Governmental Agency, broker's commissions and other
out-of-pocket costs of sale actually paid to any Person that is not an
Affiliate of the Parent attributable to such Disposition, and (v) any
reserves established in accordance with GAAP in connection with such
Disposition.
"NET INCOME" means, with respect to any fiscal period, the
consolidated net income of the Parent and its Subsidiaries for that
period, determined in accordance with GAAP, consistently applied.
-22-
"NET WORTH" means, for the Parent and its Subsidiaries, on a
consolidated basis, determined in accordance with GAAP, total assets
MINUS total liabilities.
"NOTE" means a promissory note, other than a Swing Line Note,
made by the Borrowers to a Lender evidencing Advances under that
Lender's Pro Rata Share of the Commitment, substantially in the form of
EXHIBIT C, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplanted.
"OBLIGATIONS" means all present and future obligations of
every kind or nature of the Borrowers and/or any of the Subsidiary
Guarantors at any time and from time to time owed to the Administrative
Agent or the Lenders or any one or more of them, under any one or more
of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or noncontingent,
INCLUDING obligations of performance as well as obligations of payment,
and INCLUDING interest that accrues after the commencement of any
proceeding under any Debtor Relief Law by or against any of the
Borrowers or any of the Subsidiary Guarantors.
"OPINION OF COUNSEL" means the favorable written legal opinion
of counsel to the Borrowers, substantially in the form of EXHIBIT D,
together with copies of factual certificates and legal opinions, if
any, delivered to such counsel in connection with such opinion upon
which such counsel has relied.
"PARENT" has the meaning specified in the introduction to this
Agreement.
"PARTY" means any Person other than the Administrative Agent
and the Lenders, which now or hereafter is a party to any of the Loan
Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), OTHER THAN a
Multiemployer Plan, which is subject to Title IV of ERISA and is
maintained by Borrower or to which Borrower contributes or has an
obligation to contribute.
"PERMITTED ACQUISITION" means, collectively, the Powec
Acquisition and any other Acquisition by a Borrower or any Subsidiary
of a Borrower (as applicable, the "acquiror") of another Person engaged
in the same or a similar line of business as that of the acquiror (the
"target"), PROVIDED that: (i) if such
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Acquisition involves the acquiror's payment of total Acquisition
Consideration of more than $30,000,000, the Requisite Lenders shall
have approved the terms and conditions of such Acquisition unless all
of the Acquisition Consideration for such Acquisition consists of
Common Stock or preferred stock of the acquiror or one of its
Affiliates and not more than forty percent (40%) of the total
Acquisition Consideration for such Acquisition consists of such
preferred stock; (ii) if such Acquisition involves the acquiror's
payment of total Acquisition Consideration of less than $30,000,000, a
Senior Officer of the Parent shall have provided the Administrative
Agent with notice of such intended Acquisition at least twenty (20)
Banking Days prior to the applicable Borrower's consummation of such
Acquisition and with a Compliance Certificate demonstrating the
Borrowers' compliance with the financial covenants set forth in
Sections 6.12, 6.13, 6.14, 6.16 and 6.17 of this Agreement both
immediately prior to and after giving effect to the proposed
Acquisition and certifying that no Event of Default then exists or
would occur after giving effect to the proposed Acquisition; (iii) the
Borrowers shall not be in default of any of the financial covenants set
forth in Sections 6.12, 6.13, 6.14, 6.16 and 6.17 of this Agreement;
(iv) such Acquisition shall have been approved by the board of
directors of the target; (v) the pro-forma balance sheets and combining
projections (including pro-forma financial covenant ratios) provided by
the Borrowers to the Administrative Agent shall demonstrate that the
Borrowers would remain in compliance with the financial covenants
referred to in clause (ii) above after giving effect to the
Acquisition; (vi) the target shall have achieved positive net profits
after taxes and positive earnings before interest, taxes, depreciation
and amortization for the twelve consecutive month period of the target
ended prior to such Acquisition; and (vii) the Administrative Agent
shall have received the financial statements for the most recent fiscal
year of the target ended prior to the Acquisition, and such financial
statements shall have been audited or reviewed by a firm of independent
certified public accountants acceptable to the Administrative Agent.
"PERMITTED ENCUMBRANCES" means:
(a) Inchoate Liens incident to construction on
or maintenance of Property; or Liens incident to construction on or
maintenance of Property now or hereafter filed of record for which
adequate reserves have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, PROVIDED
that, by reason of nonpayment of the obligations secured by such
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Liens, no such Property is subject to a material impending risk of loss
or forfeiture;
(b) Liens for taxes and assessments on Property
which are not yet past due; or Liens for taxes and assessments on
Property for which adequate reserves have been set aside and are being
contested in good faith by appropriate proceedings and have not
proceeded to judgment, PROVIDED that, by reason of nonpayment of the
obligations secured by such Liens, no such Property is subject to a
material impending risk of loss or forfeiture;
(c) defects and irregularities in title to any
Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is or
may reasonably be expected to be held;
(d) easements, exceptions, reservations, or
other agreements for the purpose of pipelines, conduits, cables, wire
communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or other minerals, and
other like purposes affecting Property which in the aggregate do not
materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be expected
to be held;
(e) easements, exceptions, reservations, or
other agreements for the purpose of facilitating the joint or common
use of Property in or adjacent to a shopping center or similar project
affecting Property which in the aggregate do not materially burden or
impair the fair market value or use of such Property for the purposes
for which it is or may reasonably be expected to be held;
(f) rights reserved to or vested in any
Governmental Agency to control or regulate, or obligations or duties to
any Governmental Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any
Governmental Agency to control or regulate, or obligations or duties to
any Governmental Agency with respect to, any right, power, franchise,
grant, license, or permit;
(h) present or future zoning laws and ordinances
or other laws and ordinances restricting the occupancy, use, or
enjoyment of Property;
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(i) statutory Liens, other than those described
in clauses (a) or (b) above, arising in the ordinary course of business
with respect to obligations which are not delinquent or are being
contested in good faith, PROVIDED that, if delinquent, adequate
reserves have been set aside with respect thereto and, by reason of
nonpayment, no Property is subject to a material impending risk of loss
or forfeiture;
(j) covenants, conditions, and restrictions
affecting the use of Property which in the aggregate do not materially
impair the fair market value or use of the Property for the purposes
for which it is or may reasonably be expected to be held;
(k) rights of tenants under leases and rental
agreements covering Property entered into in the ordinary course of
business of the Person owning such Property;
(l) Liens consisting of pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation, including Liens of judgments thereunder which are not
currently dischargeable;
(m) Liens consisting of pledges or deposits of
Property to secure performance in connection with operating leases made
in the ordinary course of business, PROVIDED the aggregate value of all
such pledges and deposits in connection with any such lease does not at
any time exceed 20% of the annual fixed rentals payable under such
lease;
(n) Liens consisting of deposits of Property to
secure bids made with respect to, or performance of, contracts (OTHER
THAN contracts creating or evidencing an extension of credit to the
depositor);
(o) Liens consisting of any right of offset, or
statutory bankers' lien, on bank deposit accounts maintained in the
ordinary course of business so long as such bank deposit accounts are
not established or maintained for the purpose of providing such right
of offset or bankers' lien;
(p) Liens consisting of deposits of Property to
secure statutory obligations of a Borrower;
(q) Liens consisting of deposits of Property to
secure (or in lieu of) surety, appeal or customs bonds;
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(r) Liens created by or resulting from any
litigation or legal proceeding in the ordinary course of business which
is currently being contested in good faith by appropriate proceedings,
PROVIDED that, adequate reserves have been set aside and no material
Property is subject to a material impending risk of loss or forfeiture;
(s) Liens created to secure the purchase price
of assets acquired by such Person created to secure Indebtedness
permitted by Section 6.10(d) hereof, which is incurred solely for the
purpose of financing the acquisition of such assets and incurred at the
time of acquisition, so long as each such Lien shall at all times be
confined solely to the assets or assets so acquired (and proceeds
thereof), and refinancings thereof so long as any such Lien remains
solely on the asset or assets acquired and the amount of Indebtedness
related thereto is not increased;
(t) Liens in favor of any Lender or any
Affiliate of any Lender to secure any obligations owed to such Lender
in respect of any Interest Rate Protection Agreement; and
(u) other non-consensual Liens incurred in the
ordinary course of business but not in connection with the incurrence
of any Indebtedness, which do not in the aggregate, when taken together
with all other Liens, materially impair the fair market value or use of
the Property for the purposes for which it is or may reasonably be
expected to be held;
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting
of (a) an interest (OTHER THAN a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a
ground lease), that does not materially impair the fair market value or
use of Property for the purposes for which it is or may reasonably be
expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Encumbrance, (c) the subordination of a lease or
sublease in favor of a financing entity and (d) a license, or similar
right, of or to Intangible Assets granted in the ordinary course of
business.
"PERSON" means any individual or entity, INCLUDING a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
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"PLEDGE AGREEMENT" means the pledge agreement to be executed
and delivered pursuant to ARTICLE 8 by the Borrowers, in the form of
EXHIBIT E, either as originally executed or as it may from time to time
be supplemented, modified, amended, extended or supplanted.
"PLEDGED COLLATERAL" means (a) the certificates evidencing
100% of the shares of capital stock held by the Borrowers in all
Domestic Subsidiaries and (b) the certificates evidencing 65% of the
shares of capital stock held by the Borrowers in all Foreign
Subsidiaries.
"POWEC ACQUISITION" means, collectively: (i) the Acquisition
by the Parent of all of the issued and outstanding capital stock of
Powec AS; and (ii) the Acquisition by the Parent of a
telecommunications product line from Eldec Corp.
"PRICING CERTIFICATE" means a certificate in the form of
EXHIBIT F, properly completed and signed by a Senior Officer of the
Parent.
"PRICING PERIOD" means (a) initially, the period commencing on
the Closing Date and ending on the fourth Banking Day following receipt
by Administrative Agent of the financial statements required to be
delivered pursuant to Section 7.1(a) and the Pricing Certificate
required to be delivered pursuant to Section 7.1(b), and (b)
thereafter, each subsequent period commencing on the fifth Banking Day
following receipt by the Administrative Agent of the financial
statements required to be delivered pursuant to Section 7.1(a) and the
Pricing Certificate required to be delivered pursuant to Section 7.1(b)
and ending on the fourth Banking Day following receipt by the
Administrative Agent of such financial statements for the next
subsequent Fiscal Quarter.
"PRIME RATE" means the rate of interest publicly announced
from time to time by the Administrative Agent in San Francisco,
California (or other headquarters city of the Administrative Agent), as
its "reference rate." The "reference rate" is one of several base rates
used by the Administrative Agent and serves as the basis upon which
effective rates of interest are calculated for loans and other credits
making reference thereto. The "reference rate" is not necessarily the
lowest base interest rate used by the Administrative Agent. The
"reference rate" is evidenced by the recording thereof after its
announcement in such internal publication or publications as the
Administrative Agent may designate. Any change in the Prime Rate
announced by the Administrative
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Agent shall take effect at the opening of business on the day specified
in the public announcement of such change.
"PROJECTIONS" means the projected financial information to be
prepared by the Parent and to be contained in the Confidential Offering
Memorandum furnished to the Lenders as part of the syndication process
referred to in Section 5.14.
"PROPERTY" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Commitment set forth opposite the name of that Lender
on SCHEDULE 1.1, as such percentage may be increased or decreased
pursuant to a Commitment Assignment and Acceptance executed in
accordance with Section 11.8.
"QUARTERLY PAYMENT DATE" means each June 30, September 30,
December 31 and March 31, commencing with June 30, 2000.
"REAL PROPERTY" means, as of any date of determination, all
real property then or theretofore owned, leased or occupied by any of
the Borrowers.
"REGULATION D" means Regulation D, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"REGULATION U" means Regulation U, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"REQUEST FOR LETTER OF CREDIT" means a written request for a
Letter of Credit substantially in the form of EXHIBIT G, signed by a
Responsible Official of the Parent, on behalf of the Borrowers, and
properly completed to provide all information required to be included
therein.
"REQUEST FOR LOAN" means a written request for a Loan
substantially in the form of EXHIBIT H, signed by a Responsible
Official of the Parent, on behalf of the Borrowers, and properly
completed to provide all information required to be included therein.
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"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"REQUISITE LENDERS" means (a) as of any date of determination
if the Commitments are then in effect, Lenders having in the aggregate
51% or more of the Commitments then in effect and (b) as of any date of
determination if the Commitments have then been suspended or terminated
and there is then any Indebtedness evidenced by the Notes, Lenders
holding Notes evidencing in the aggregate 51% or more of the aggregate
Indebtedness then evidenced by the Notes, and, in any event, not less
than two (2) Lenders (unless there shall then be but one Lender).
"RESET DATE" means the date on which any Loan denominated in
an Approved Offshore Currency is continued for an additional Eurodollar
Period.
"RESPONSIBLE OFFICIAL" means (a) any Senior Officer of the
Parent, who shall be authorized by all of the Borrowers to act on their
behalf, and (b) any other responsible official of the Parent so
designated in a written notice thereof from a Senior Officer of the
Parent to the Administrative Agent. The Lenders shall be entitled to
conclusively rely upon any document or certificate that is signed or
executed by a Responsible Official as having been authorized by all
necessary corporate action on the part of the Borrowers.
"RIGHT OF OTHERS" means, as to any Property in which a Person
has an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, INCLUDING any option or right
to acquire a Lien; PROVIDED, however, that (a) no covenant restricting
the use or disposition of Property of such Person contained in any
Contractual Obligation of such Person and (b) no provision contained in
a contract creating a right of payment or performance in favor of a
Person that conditions, limits, restricts, diminishes, transfers or
terminates such right shall be deemed to constitute a Right of Others.
"SENIOR OFFICER" means (a) the chief executive officer, (b)
the president, (c) any executive vice president, (d) the chief
financial officer or (e) the treasurer, in each case of the Parent.
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"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or
adoption after the Closing Date of any Law or interpretation, or any
change therein or thereof, or any change in the interpretation or
administration thereof by any Governmental Agency, central bank or
comparable authority charged with the interpretation or administration
thereof, or compliance by any Lender or its Eurodollar Lending Office
with any request or directive (whether or not having the force of Law)
of any such Governmental Agency, central bank or comparable authority.
"STANDBY LETTER OF CREDIT" means each Letter of Credit issued
by the Issuing Lender under the Commitment pursuant to Section 2.4 to
support the payment or performance of an obligation by a Borrower.
"STOCKHOLDERS' EQUITY" means, as of any date of determination
and with respect to any Person, the consolidated stockholders' equity
of the Person as of that date determined in accordance with GAAP;
PROVIDED that there shall be excluded from Stockholders' Equity any
amount attributable to Disqualified Stock.
"SUBORDINATED OBLIGATIONS" means any Indebtedness of a
Borrower that (a) does not have any scheduled principal payment,
mandatory principal prepayment or sinking fund payment due prior to the
date that is one year after the Maturity Date, (b) is not secured by
any Lien on any Property of such Borrower or any of its Subsidiaries,
(c) is not guarantied by any Subsidiary of such Borrower, (d) is
subordinated by its terms in right of payment to the Obligations
pursuant to provisions acceptable to the Requisite Lenders, (e) is
subject to such financial and other covenants and events of defaults as
may be acceptable to the Requisite Lenders and (f) is subject to
customary interest blockage and delayed acceleration provisions as may
be acceptable to the Requisite Lenders.
"SUBSIDIARY" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in any case, characterized as such or as a
"joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability
company, of which a majority of the securities having ordinary voting
power for the election of directors or other governing body (other than
securities having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person and/or
one or more Subsidiaries of such Person, or (b) in the case of a
partnership, of which a
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majority of the partnership or other ownership interests are at the
time beneficially owned by such Person and/or one or more of its
Subsidiaries.
"SUBSIDIARY GUARANTORS" means all current and future Domestic
Subsidiaries.
"SUBSIDIARY GUARANTY" means the continuing guaranty of the
Obligations to be executed and delivered pursuant to ARTICLE 8 by the
Subsidiary Guarantors, in the form of EXHIBIT I, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"SWING LINE" means the revolving line of credit established by
the Swing Line Bank in favor of the Borrowers pursuant to Section 2.1A.
"SWING LINE COMMITMENT" means an amount equal to the lesser of
(i) $5,000,000 or (ii) the then applicable Commitment MINUS the
Aggregate Effective Amount of outstanding Letters of Credit MINUS the
aggregate principal amount outstanding under the Notes.
"SWING LINE BANK" means Union Bank of California, N.A. or any
successor swing line bank hereunder.
"SWING LINE LOAN" means an Advance which bears interest at a
rate per annum equal to interest payable on an Alternate Base Rate Loan
and made by the Swing Line Bank to the Borrowers under the Swing Line.
"SWING LINE NOTE" means the promissory note made by the
Borrowers to the Swing Line Bank, substantially in the form of EXHIBIT
J, either as originally executed or as the same may from time to time
be supplemented, modified, amended, renewed, extended or supplanted.
"SWING LINE OUTSTANDINGS" means, as of any date of
determination, the aggregate principal amount of Swing Line Loans then
outstanding.
"TANGIBLE NET WORTH" means, as of the last day of any fiscal
quarter, (a) Stockholders' Equity of the Parent and its Subsidiaries on
such date MINUS (b) all Intangible Assets of the Borrowers and their
Subsidiaries on such date.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the
fact or situation described therein is known by the Person (or, in the
case of a Person other than a natural
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Person, known by a Responsible Official of that Person) making the
representation, warranty or other statement, or with the exercise of
reasonable due diligence under the circumstances (in accordance with
the standard of what a reasonable Person in similar circumstances would
have done) would have been known by the Person (or, in the case of a
Person other than a natural Person, would have been known by a
Responsible Official of that Person).
"TREATY" means the Treaty establishing the European Economic
Community, being the Treaty of Rome of March 25, 1957 as amended by the
single European Act of 1986 and the Maastricht Treaty, which was signed
on February 7, 1992 and came into force on November 1, 1993, as
amended, modified or supplemented from time to time.
"TYPE", when used with respect to any Loan or Advance, means
the designation of whether such Loan or Advance is an Alternate Base
Rate Loan or Advance, or a Eurodollar Rate Loan or Advance.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of a Borrower,
100% of the capital stock or other equity interest of which is owned,
directly or indirectly, by such Borrower, EXCEPT for director's
qualifying shares required by applicable Laws.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 JOINDER OF POWEC. The Borrowers may add Powec as a
"Borrower" hereunder at any time with the consent of the Administrative Agent.
To become a "Borrower" hereunder, Powec shall be required to become a party to
this Agreement by entering into a joinder agreement substantially in the form of
EXHIBIT K.
1.4 ACCOUNTING TERMS. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, EXCEPT as otherwise
specifically prescribed herein. In the event that GAAP changes during the term
of this Agreement such that the covenants contained in Sections 6.12, 6.13,
6.14, 6.16, and 6.17 would then be calculated in a different manner or with
different components, (a) the Borrowers and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating the Borrowers' financial condition to substantially the
same criteria as were effective prior to such change in GAAP, and (b) the
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Borrowers shall be deemed to be in compliance with the covenants contained in
the aforesaid Sections if and to the extent that the Borrowers would have been
in compliance therewith under GAAP as in effect immediately prior to such
change, but shall have the obligation to deliver each of the materials described
in ARTICLE 7 to the Administrative Agent and the Lenders, on the dates therein
specified, with financial data presented in a manner which conforms with GAAP as
in effect immediately prior to such change.
1.5 ROUNDING. Any financial ratios required to be maintained
by the Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.6 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.7 REFERENCES TO "BORROWER AND ITS SUBSIDIARIES". Any
reference herein to "a Borrower and its Subsidiaries" or the like shall refer
solely to such Borrower during such times, if any, as such Borrower shall have
no Subsidiaries.
1.8 MISCELLANEOUS TERMS. The term "or" is disjunctive; the
term "and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2.
LOANS AND LETTERS OF CREDIT
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set
forth in this Agreement, at any time and from time to time from the
Closing Date through the Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable
Commitment, make Advances to the Borrowers under the Commitment in
Dollars or in Approved Offshore Currencies in such amounts as the
Borrowers may request that do not cause either: (A) the SUM OF (i) the
aggregate principal amount outstanding under the Notes, (ii) the
aggregate Swing Line Outstandings (after giving effect to any
concurrent payment thereof with the proceeds of such Advances) and
(iii) the Aggregate Effective Amount of all outstanding Letters of
Credit to exceed the Commitment; or (B) the Dollar Equivalent of the
principal amount of all Loans and of the Aggregate Effective Amount of
all Letters of Credit outstanding in Approved Offshore Currencies to
exceed the Approved Offshore Currency Borrowing Limit. Subject to the
limitations set forth herein, the Borrowers may borrow, repay and
reborrow under the Commitment without premium or penalty.
(b) Subject to the next sentence, each Loan
shall be made pursuant to a Request for Loan which shall specify the
requested: (i) date of such Loan; (ii) type of Loan; (iii) amount of
such Loan, (iv) currency in which such Loan is to be made (i.e.,
whether in Dollars or in an Approved Offshore Currency), and if such
Loan is to be made in an Approved Offshore Currency, such Request for
Loan shall specify which particular Approved Offshore Currency is
requested; and (v) in the case of a Eurodollar Rate Loan, the
Eurodollar Period for such Loan. Unless the Administrative Agent has
notified, in its sole and absolute discretion, the Borrowers to the
contrary, a Loan may be requested by telephone by a Responsible
Official of the Parent, in which case the Parent shall confirm such
request by promptly delivering a Request for Loan (conforming to the
preceding sentence) in person or by telecopier to the Administrative
Agent. The Administrative Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic request for Loan purportedly
made by a Responsible Official of the Parent, and the Borrowers hereby
agree to indemnify the Administrative Agent from any loss, cost,
expense or liability as a result of so acting.
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(c) Promptly following receipt of a Request for
Loan, the Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the Dollar Equivalent of such Loan (if
such Request for Loan designated an Approved Offshore Currency) the
applicable Eurodollar Period, and that Lender's Pro Rata Share of the
Loan. Not later than 12:00 p.m., California time, on the date specified
for any Loan (which must be a Banking Day), each Lender shall make its
Pro Rata Share of the Loan in immediately available funds available to
the Administrative Agent at the Administrative Agent's Office, EXCEPT
that if such Loan is denominated in an Approved Offshore Currency, each
Lender shall make available its funds at such office as the
Administrative Agent has previously specified in a notice to each
Lender, in such funds as are then customary for the settlement of
international transactions in the applicable Approved Offshore Currency
and no later than such local time as is necessary for such funds to be
received and transferred to the appropriate Borrower for same day value
on the date of such Loan. Upon satisfaction or waiver of the applicable
conditions set forth in ARTICLE 8, all Advances shall be credited on
that date in immediately available funds to the Designated Deposit
Account.
(d) Unless the Requisite Lenders otherwise
consent, each Alternate Base Rate Loan shall be not less than $500,000
and in an integral multiple of $100,000 or the unused amount of the
Commitment and Eurodollar Rate Loan shall be not less than $1,000,000
and in an integral multiple of $500,000 or the unused amount of the
Commitment (or the Dollar Equivalent of each such amount on the date of
such Eurodollar Rate Loan).
(e) The Advances made by each Lender under the
Commitment shall be evidenced by that Lender's Note.
(f) A Request for Loan shall be irrevocable upon
the Administrative Agent's first notification thereof.
(g) If no Request for Loan (or telephonic
request for Loan referred to in the second sentence of Section 2.1(c),
if applicable) has been made within the requisite notice periods set
forth in Section 2.2 or 2.3 prior to the end of the Eurodollar Period
for any outstanding Eurodollar Rate Loan, then on the last day of such
Eurodollar Period, such Eurodollar Rate Loan shall be automatically
converted into an Alternate Base Rate Loan in the same amount, unless
such Eurodollar Rate Loan is a Loan denominated in an Approved Offshore
Currency, in which case such Eurodollar Rate Loan shall be repaid in
full.
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2.1A SWING LINE
(a) The Swing Line Bank shall from time to time
prior to the Maturity Date make Swing Line Loans to the Borrowers in
such amounts as the Borrowers may request; PROVIDED, HOWEVER, THAT (i)
after giving effect to such Swing Line Loan, the Swing Line
Outstandings shall not exceed the Swing Line Commitment, and (ii)
without the consent of the Requisite Lenders and the Swing Line Bank,
no Swing Line Loan shall be made during the continuation of an Event of
Default. Unless notified to the contrary by the Swing Line Bank,
Advances under the Swing Line may be made in amounts of at least
$100,000 and integral multiples of $25,000 in excess thereof. Each
request by the Borrowers for a Swing Line Loan shall be made pursuant
to a Request for Loan (or telephonic request for Loan promptly
confirmed by telecopier) received by the Administrative Agent, at the
Administrative Agent's office, not later than 9:00 a.m., California
time, on the date (which must be a Banking Day) such Swing Line Loan is
to be made. Each repayment of a Swing Line Loan shall be in an amount
which is an integral multiple of $25,000 or the remaining outstanding
principal amount of Swing Line Loans.
(b) The Swing Line Loans shall bear interest at
a fluctuating rate per annum equal to the rate of interest payable on
Alternate Base Rate Loans payable on such dates, not more frequently
than monthly, as may be specified by the Swing Line Bank and in any
event on the Maturity Date. Interest on Swing Line Loans shall be
payable upon demand of the Swing Line Bank, and the Swing Line Bank
shall be responsible for invoicing the Borrowers for such interest. The
interest payable on Swing Line Loans is solely for the account of the
Swing Line Bank.
(c) The principal amount of the Swing Line Loans
shall be payable not later than seven (7) days following demand made by
the Swing Line Bank and in any event on the Maturity Date.
(d) Upon the making of each Swing Line Loan by
the Swing Line Bank, each Lender shall be deemed to have purchased from
the Swing Line Bank a participation therein in an amount equal to that
Lender's Pro Rata Share of the then applicable Commitment TIMES the
amount of the Swing Line Loan. Upon demand by the Administrative Agent,
including any such demand made following the occurrence of an Event of
Default, each Lender promptly shall provide to the Swing Line Bank such
Lender's participation amount of any such Swing Line Loan as computed
in accordance with the preceding sentence.
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The obligation of each Lender so to provide its purchase price to the
Swing Line Bank shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other
occurrence or event.
(e) In the event that the Swing Line
Outstandings are in excess of $2,000,000 on three consecutive Banking
Days, then on the next Banking Day (unless the Borrowers have made
other arrangements acceptable to the Swing Line Bank to reduce the
Swing Line Outstandings below such amount), the Borrowers shall request
a Loan in a minimum amount necessary to reduce the Swing Line
Outstandings below such amount. The Administrative Agent shall request
that the Lenders provide such amount to the Swing Line Bank (which the
Swing Line Bank shall then apply to the Swing Line Outstandings) and
credit any balance of such Loan in immediately available funds to the
Designated Deposit Account. If the Borrowers fail to request a Loan
within the requisite time therefor pursuant to Section 2.2, the
Administrative Agent may, but is not required to, without notice to or
the consent of the Borrowers, cause a Loan to be made by the Lenders in
the minimum amount necessary to reduce the Swing Line Outstandings
below such amount and, for this purpose, the conditions precedent set
forth in Section 8.2 shall not apply. The proceeds of such Loan shall
be paid to the Swing Line Bank for application to the Swing Line
Outstandings.
2.2 ALTERNATE BASE RATE LOANS. Each request by the Borrowers
for an Alternate Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second sentence of
Section 2.1(c), if appli cable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 10:00 a.m. California time, on the
date (which must be a Banking Day) immediately prior to the date of the
requested Alternate Base Rate Loan. All Alternate Base Rate Loans shall be
denominated in Dollars. All Loans other than Loans denominated in an Approved
Offshore Currency shall constitute Alternate Base Rate Loans unless properly
designated as a Eurodollar Rate Loan pursuant to Section 2.3.
2.3 EURODOLLAR RATE LOANS.
(a) Each request by the Borrowers for a
Eurodollar Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for Loan referred to in the second sentence
of Section 2.1(c), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 9:00 a.m.,
California time, at least four (4) Eurodollar Banking Days (or at least
five (5) Eurodollar Banking Days, if such Eurodollar Rate Loan is to be
made in
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an Approved Offshore Currency) before the first day of the applicable
Euro dollar Period.
(b) On the date which is two (2) Eurodollar
Banking Days before the first day of the applicable Eurodollar Period,
the Administrative Agent shall confirm its determination of the
applicable Eurodollar Rate (which determination shall be conclusive in
the absence of manifest error) and promptly shall give notice of the
same to the Borrowers and the Lenders by telephone or telecopier (and
if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the
Requisite Lenders otherwise consent, no more than ten (10) Eurodollar
Rate Loans shall be out standing at any one time.
(d) No Eurodollar Rate Loan may be requested
during the continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any
Lender to fund any Eurodollar Rate Advance in the Designated Eurodollar
Market.
2.4 LETTERS OF CREDIT.
(a) The Existing Letters of Credit described in
SCHEDULE 2.4 shall be Letters of Credit for all purposes under this
Agreement. Subject to the terms and conditions hereof, at any time and
from time to time from the Closing Date through the Maturity Date, the
Issuing Lender shall issue such Letters of Credit under the Commitment
as Borrowers may request by a Request for Letter of Credit; PROVIDED
that (i) giving effect to all such Letters of Credit, the SUM of (A)
the aggregate principal amount outstanding under the Notes PLUS (B) the
Swing Line Outstandings PLUS (C) the Aggregate Effective Amount of all
outstanding Letters of Credit, does not exceed the then applicable
Commitment, and (ii) the Aggregate Effective Amount under all
outstanding Letters of Credit does not exceed $6,000,000. Each Letter
of Credit shall be in a form acceptable to the Issuing Lender. Unless
all the Lenders otherwise consent in a writing delivered to the
Administrative Agent, the term of any Letter of Credit shall not exceed
one (1) year or extend beyond the Maturity Date.
(b) Each Request for Letter of Credit shall be
submitted to the Issuing Lender, with a copy to the Administrative
Agent, at least five (5) Banking Days prior to the date upon which the
related Letter of Credit is proposed to be issued. The Administrative
Agent shall promptly notify the
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Issuing Lender whether such Request for Letter of Credit, and the
issuance of a Letter of Credit pursuant thereto, conforms to the
requirements of this Agreement. Upon issuance of a Letter of Credit,
the Issuing Lender shall promptly notify the Administrative Agent, and
the Administrative Agent shall promptly notify the Lenders, of the
amount and terms thereof.
(c) Upon the issuance of a Letter of Credit,
each Lender shall be deemed to have purchased a pro rata participation
in such Letter of Credit from the Issuing Lender in an amount equal to
that Lender's Pro Rata Share. Without limiting the scope and nature of
each Lender's participation in any Letter of Credit, to the extent that
the Issuing Lender has not been reimbursed by the Borrowers for any
payment required to be made by the Issuing Lender under any Letter of
Credit, each Lender shall, pro rata according to its Pro Rata Share,
reimburse the Issuing Lender through the Administrative Agent promptly
upon demand for the amount of such payment. The obligation of each
Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrowers
to reimburse the Issuing Lender for the amount of any payment made by
the Issuing Lender under any Letter of Credit together with interest as
hereinafter provided.
(d) The Borrowers agree to pay to the Issuing
Lender through the Administrative Agent an amount equal to any payment
made by the Issuing Lender with respect to each Letter of Credit within
one (1) Banking Day after demand made by the Issuing Lender therefor,
together with interest on such amount from the date of any payment made
by the Issuing Lender (with the understanding that the Issuing Lender
promptly shall notify the Borrowers of such payment date) at the rate
applicable to Alternate Base Rate Loans for two (2) Banking Days and
thereafter at the Default Rate. The principal amount of any such
payment shall be used to reimburse the Issuing Lender for the payment
made by it under the Letter of Credit and, to the extent that the
Lenders have not reimbursed the Issuing Lender pursuant to Section
2.4(c), the interest amount of any such payment shall be for the
account of the Issuing Lender. Each Lender that has reimbursed the
Issuing Lender pursuant to Section 2.4(c) for its Pro Rata Share of any
payment made by the Issuing Lender under a Letter of Credit shall
thereupon acquire a pro rata participation, to the extent of such
reimbursement, in the claim of the Issuing Lender against the Borrowers
for reimbursement of principal and interest under this Section 2.4(d)
and shall share, in accordance with that pro rata participation, in any
principal payment made by the Borrowers with respect to such claim and
in any interest payment
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made by the Borrowers (but only with respect to periods subsequent to
the date such Lender reimbursed the Issuing Lender) with respect to
such claim.
(e) The Borrowers may, pursuant to a Request for
Loan, request that Advances be made pursuant to Section 2.1(a) to
provide funds for the payment required by Section 2.4(d) and, for this
purpose, the conditions precedent set forth in ARTICLE 8 shall not
apply. The proceeds of such Advances shall be paid directly to the
Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
(f) If the Borrowers fail to make the payment
required by Section 2.4(d) within the time period therein set forth, in
lieu of the reimbursement to the Issuing Lender under Section 2.4(c)
the Issuing Lender may (but is not required to), without notice to or
the consent of the Borrowers, instruct the Administrative Agent to
cause Advances to be made by the Lenders under the Commitment in an
aggregate amount equal to the amount paid by the Issuing Lender with
respect to that Letter of Credit and, for this purpose, the conditions
precedent set forth in ARTICLE 8 shall not apply. The proceeds of such
Advances shall be paid directly to the Issuing Lender to reimburse it
for the payment made by it under the Letter of Credit.
(g) The issuance of any supplement,
modification, amendment, renewal, or extension to or of any Letter of
Credit shall be treated in all respects the same as the issuance of a
new Letter of Credit.
(h) The obligation of the Borrowers to pay to
the Issuing Lender the amount of any payment made by the Issuing Lender
under any Letter of Credit shall be absolute, unconditional, and
irrevocable, subject only to performance by the Issuing Lender of its
obligations to the Borrowers under Uniform Commercial Code Section
5109. Without limiting the foregoing, the Borrowers' obligations shall
not be affected by any of the following circumstances:
(i) any lack of validity or
enforceability prior to its stated expiration date of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any
consent to departure from the Letter of Credit, this
Agreement, or any other agreement or instrument relating
thereto, with the consent of the Borrowers;
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(iii) the existence of any claim, setoff,
defense, or other rights which the Borrowers, or any of them,
may have at any time against the Issuing Lender, the
Administrative Agent or any Lender, any beneficiary of the
Letter of Credit (or any persons or entities for whom any such
beneficiary may be acting) or any other Person, whether in
connection with the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto, or any
unrelated transactions;
(iv) any demand, statement, or any other
document presented under the Letter of Credit proving to be
forged, fraudulent, invalid, or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect whatsoever so long as any such document appeared
substantially to comply with the terms of the Letter of
Credit;
(v) payment by the Issuing Lender in
good faith under the Letter of Credit against presentation of
a draft or any accompanying document which does not strictly
comply with the terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery of any
Property purported to be represented by documents presented in
connection with any Letter of Credit or any difference between
any such Property and the character, quality, quantity,
condition, or value of such Property as described in such
documents;
(vii) the time, place, manner, order or
contents of shipments or deliveries of Property as described
in documents presented in connection with any Letter of Credit
or the existence, nature and extent of any insurance relative
thereto;
(viii) the solvency or financial
responsibility of any party issuing any documents in
connection with a Letter of Credit;
(ix) any failure or delay in notice of
shipments or arrival of any Property;
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(x) any error in the transmission of
any message relating to a Letter of Credit not caused by the
Issuing Lender, or any delay or interruption in any such
message;
(xi) any error, neglect or default of
any correspondent of the Issuing Lender in connection with a
Letter of Credit;
(xii) any consequence arising from acts
of God, war, insurrection, civil unrest, disturbances, labor
disputes, emergency conditions or other causes beyond the
control of the Issuing Lender;
(xiii) so long as the Issuing Lender in
good faith determines that the contract or document appears
substantially to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal effect of any
contract or document referred to in any document submitted to
the Issuing Lender in connection with a Letter of Credit; and
(xiv) where the Issuing Lender has acted
in good faith and observed general banking usage, any other
circumstances whatsoever;
provided in each case in this Section 2.4(h) that payment by the
Issuing Lender under the applicable Letter of Credit shall not have
constituted gross negligence or wilful misconduct.
(i) The Issuing Lender shall be entitled to the
protection accorded to the Administrative Agent pursuant to Section
10.6, with all necessary changes.
(j) The Uniform Customs and Practice for
Documentary Credits, as published in its most current version by the
International Chamber of Commerce, shall be deemed a part of this
Section and shall apply to all Letters of Credit to the extent not
inconsistent with applicable Law.
2.5 VOLUNTARY REDUCTION OF REVOLVING COMMITMENT. The Borrowers
shall have the right, at any time and from time to time, without penalty or
charge, upon at least five (5) Banking Days' prior written notice by a
Responsible Official of the Parent to the Administrative Agent, voluntarily to
reduce, permanently and irrevocably, in aggregate principal amounts in an
integral multiple of $500,000 but not
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less than $5,000,000, or to terminate, all or a portion of the then undisbursed
portion of the Commitment. The Administrative Agent shall promptly notify the
Lenders of any reduction or termination of the Commitment under this Section.
2.6 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount avail able to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrowers a corresponding amount. If the Administrative Agent has made funds
available to the Borrowers based on such assumption and such corresponding
amount is not in fact made available to the Administrative Agent by such Lender,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent promptly shall notify the Borrowers and the Borrowers shall
pay such corresponding amount to the Administrative Agent. The Administrative
Agent also shall be entitled to recover from such Lender interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrowers to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to either (i) the daily Federal Funds Rate, if such
corresponding amount was made available by the Administrative Agent in Dollars,
or (ii) the Administrative Agent's cost of funds for the Applicable Currency
computed on the same basis as regular interest on Loans made hereunder in such
Applicable Currency, if such corresponding amount was made available by the
Administrative Agent in an Approved Offshore Currency, as applicable. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its
share of the Commitments or to prejudice any rights which the Administrative
Agent or the Borrowers may have against any Lender as a result of any default by
such Lender hereunder.
2.7 COLLATERAL. The Obligations shall be secured by a first
priority (SUBJECT TO Liens permitted by Section 6.9) perfected Lien on the
Collateral pursuant to the Pledge Agreement.
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Article 3.
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding
daily unpaid principal amount of each Advance from the date thereof
until payment in full is made and shall accrue and be payable at the
rates set forth or provided for herein before and after Default, before
and after maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate
Loan shall be due and payable on each Quarterly Payment Date. EXCEPT as
otherwise provided in Sections 3.1(d) and 3.8, the unpaid principal
amount of any Alternate Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Alternate Base Rate PLUS the
Applicable Base Rate Margin. Each change in the interest rate under
this Section 3.1(b) due to a change in the Alternate Base Rate shall
take effect simultaneously with the corresponding change in the
Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate
Loan which is for a term of three months or less shall be due and
payable on the last day of the related Eurodollar Period. Interest
accrued on each other Eurodollar Rate Loan shall be due and payable on
the date which is three months after the date such Eurodollar Rate Loan
was made (and, in the event that all of the Lenders have approved a
Eurodollar Period of longer than six months, every three months
thereafter through the last day of the Eurodollar Period) and on the
last day of the related Eurodollar Period. EXCEPT as otherwise provided
in Sections 3.1(d) and 3.8, the unpaid principal amount of any
Eurodollar Rate Loan shall bear interest at a rate per annum equal to
the Eurodollar Rate or the Approved Offshore Currency Rate for that
Eurodollar Rate Loan, as applicable, PLUS the Applicable Eurodollar
Rate Margin.
(d) During the existence of an Event of Default,
the Loans shall bear interest at a rate per annum equal to the SUM OF
(i) the interest rate specified in Sections 3.1(b) or 3.1(c), whichever
is applicable, PLUS (ii) two (2) percentage points.
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(e) If not sooner paid, the principal
Indebtedness evidenced by the Notes shall be payable as follows:
(i) the amount, if any, by which the
SUM OF (A) the principal Indebtedness evidenced by the Notes
PLUS (B) the Swing Line Outstandings PLUS (C) the Aggregate
Effective Amount of all outstanding Letters of Credit at any
time exceeds the then applicable Commitment shall be payable
immediately;
(ii) the amount, if any, by which the
Dollar Equivalent of the principal amount of all Loans and of
the Aggregate Effective Amount of all Letters of Credit
outstanding in Approved Offshore Currencies exceed the
Approved Offshore Currency Borrowing Limit shall be payable
immediately;
(iii) the amount, if any, by which the
Dollar Equivalent of the principal amount of all Loans and of
the Aggregate Effective Amount of all Letters of Credit
outstanding on any Reset Date exceeds the then applicable
Commitment as a result of a change in Dollar Equivalents shall
be payable with two Banking Days after the Administrative
Agent notifies the Borrower of such excess; and
(iv) the principal Indebtedness
evidenced by the Notes shall in any event be payable on the
Maturity Date.
(f) The principal Indebtedness evidenced by the
Notes shall be prepaid on or before the third Banking Day following the
receipt by Borrower or any of its Subsidiaries of (i) Net Cash Sales
Proceeds from Dispositions, by an amount equal to 100% of such Net Cash
Sales Proceeds, (ii) Net Cash Issuance Proceeds from the issuance of
debt securities of any Borrower or of any Subsidiary of a Borrower
(other than debt permitted by clauses (a) through (e) or (g) and (h) of
Section 6.10) , by an amount equal to 100% of such Net Cash Issuance
Proceeds, and (iii) Net Cash Issuance Proceeds from the issuance of
equity securities of any Borrower or of any Subsidiary of a Borrower
(EXCEPT (i) an issuance of equity securities to a Borrower or to a
Wholly-Owned Subsidiary or to employees or former employees, directors
and officers of a Borrower pursuant to an exercise of stock options
with respect to equity in such Borrower and (ii) an issuance of equity
securities in connection with Permitted Acquisition), by an amount
equal to 100% of such Net Cash Issuance Proceeds.
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(g) The principal Indebtedness evidenced by the
Notes may, at any time and from time to time, voluntarily be paid or
prepaid in whole or in part without premium or penalty, EXCEPT that
with respect to any voluntary prepayment under this Subsection, (i) any
partial prepayment of a Revolving Loan shall be not less than $100,000
and shall be in an integral multiple of $50,000, (ii) the
Administrative Agent shall have received written notice of any
prepayment by 9:00 a.m. California time on the date that is two (2)
Banking Days before the date of prepayment (which must be a Banking
Day) in the case of an Alternate Base Rate Loan, and, in the case of a
Eurodollar Rate Loan, three (3) Banking Days before the date of
prepayment, which notice shall identify the date and amount of the
prepayment and the Loan(s) being prepaid, (iii) each prepayment of
principal on any Eurodollar Rate Loan shall be accompanied by payment
of interest accrued to the date of payment on the amount of principal
paid, and (iv) any payment or prepayment of all or any part of any
Eurodollar Rate Loan on a day other than the last day of the applicable
Eurodollar Period shall be subject to Section 3.6(e).
3.2 ARRANGER AND AGENCY FEES. On the Closing Date and on each
other date upon which a fee is payable, the Borrowers shall pay to the Arranger
and the Administrative Agent such fees as heretofore agreed upon by letter
agreement between the Borrowers and the Arranger. The fees paid to the Arranger
and the Administrative Agent are solely for their own account and are
nonrefundable.
3.3 COMMITMENT FEE. From the Closing Date through the Maturity
Date, the Borrowers shall pay to the Administrative Agent, for the ratable
accounts of the Lenders pro rata according to their Pro Rata Share of the
Commitment, a commit ment fee equal to the Applicable Commitment Fee Rate per
annum TIMES the SUM of (a) the average daily Available Amount PLUS (b) the
average daily Aggregate Effective Amount of all Letters of Credit. The
commitment fee shall be payable quarterly in arrears as of each Quarterly
Payment Date within ten (10) days after receipt by the Borrowers of an invoice
therefor from the Administrative Agent.
3.4 LETTER OF CREDIT FEES. With respect to each Letter of
Credit, the Borrowers shall pay the following fees:
(a) concurrently with the issuance of each
Standby Letter of Credit, a letter of credit issuance fee to the
Issuing Lender for the sole account of the Issuing Lender, in an amount
set forth in the letter agreement between the Borrowers and the Issuing
Lender;
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(b) quarterly, in arrears as of each Quarterly
Payment Date, to the Administrative Agent for the ratable accounts of
the Lenders pro rata according to their Pro Rata Share of the
Commitment, a standby letter of credit fee in an amount equal to the
then Applicable Eurodollar Margin per annum TIMES the average daily
amount available for drawing under all outstanding Standby Letters of
Credit; and
(c) concurrently with each issuance,
negotiation, drawing or amendment of each Commercial Letter of Credit,
to the Issuing Lender for the sole account of the Issuing Lender,
issuance, negotiation, drawing and amendment fees in the amounts set
forth from time to time as the Issuing Lender's published scheduled
fees for such services.
Each of the fees payable with respect to Letters of Credit under this
Section is earned when due and is nonrefundable.
3.5 INCREASED COMMITMENT COSTS. If any Lender shall determine
in good faith that the introduction after the Closing Date of any applicable
law, rule, regulation or guideline regarding capital adequacy, or any change
therein or any change in the interpretation or administration thereof by any
central bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar Lending
Office) or any corporation controlling such Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority not imposed as a result of such
Lender's or such corporation's failure to comply with any other Laws, affects or
would affect the amount of capital required or expected to be main tained by
such Lender or any corporation controlling such Lender and such Lender (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's desired return on capital) determines in good
faith that the amount of such capital is increased, or the rate of return on
capital is reduced, as a consequence of its obligations under this Agreement,
then, within ten (10) Banking Days after demand of such Lender, the Borrowers
shall pay to such Lender, from time to time as specified in good faith by such
Lender, additional amounts sufficient to compensate such Lender in light of such
circumstances, to the extent reasonably allocable to such obligations under this
Agreement, PROVIDED that the Borrowers shall not be obligated to pay any such
amount which arose prior to the date which is ninety (90) days preceding the
date of such demand or is attributable to periods prior to the date which is
ninety (90) days preceding the date of such demand. Each Lender's determination
of such amounts shall be conclusive in the absence of manifest error. If
Borrowers become obligated to pay additional amounts described in this SECTION
3.5 or under SECTION 3.6 to any Lender, the Borrowers may designate a
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financial institution reasonably acceptable to the Administrative Agent to
replace such Lender by purchasing for cash and receiving an assignment of such
Lender's Pro Rata Share of the Commitment and the rights of such Lender under
the Loan Documents without recourse to or warranty by, or expenses to, such
Lender, for a purchase price equal to the outstanding amounts owing to such
Lender (including such additional amounts owing to such Lender pursuant to this
SECTION 3.5 or SECTION 3.6). Upon execution of an Assignment Agreement, such
other financial institution shall be deemed to be a "Lender" for all purposes of
this Agreement as set forth in SECTION 11.8 hereof.
3.6 EURODOLLAR COSTS AND RELATED MATTERS.
(a) In the event that any Governmental Agency
imposes on any Lender any reserve or comparable requirement (INCLUDING
any emergency, supplemental or other reserve) with respect to the
Eurodollar Obligations of that Lender, the Borrowers shall pay that
Lender within ten (10) Banking Days after demand all amounts necessary
to compensate such Lender (determined as though such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market) in respect of the
imposition of such reserve requirements (PROVIDED, that the Borrowers
shall not be obligated to pay any such amount which arose prior to the
date which is ninety (90) days preceding the date of such demand or is
attributable to periods prior to the date which is ninety (90) days
preceding the date of such demand). The Lender's determination of such
amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or
occurrence of any Special Eurodollar Circumstance:
(1) shall subject any Lender or its
Eurodollar Lending Office to any tax, duty or other charge or
cost with respect to any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances, or shall change the basis of
taxation of payments to any Lender attributable to the
principal of or interest on any Eurodollar Rate Advance or any
other amounts due under this Agreement in respect of any
Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Advances, EXCLUDING (i) taxes imposed on or measured in
whole or in part by its overall net income by (A) any
jurisdiction (or political subdivision thereof) in which it is
orga nized or maintains its principal office or Eurodollar
Lending Office or
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(B) any jurisdiction (or political subdivision thereof) in
which it is "doing business" and (ii) any withholding taxes or
other taxes based on gross income imposed by the United States
of America for any period with respect to which it has failed
to provide Borrower with the appropriate form or forms
required by Section 11.21, to the extent such forms are then
required by applicable Laws;
(2) shall impose, modify or deem
applicable any reserve not applicable or deemed applicable on
the date hereof (INCLUDING any reserve imposed by the Board of
Governors of the Federal Reserve System, special deposit,
capital or similar requirements against assets of, deposits
with or for the account of, or credit extended by, any Lender
or its Eurodollar Lending Office); or
(3) shall impose on any Lender or its
Eurodollar Lending Office or the Designated Eurodollar Market
any other condition affecting any Eurodollar Rate Advance, any
of its Notes evidencing Eurodollar Rate Loans, its obligation
to make Eurodollar Rate Advances or this Agreement, or shall
otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar
Lending Office of making or maintaining any Eurodollar Rate Advance or
in respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances or reduces the amount of any sum received or receivable by
such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Loans or its obligation to make Eurodollar Rate Advances (assuming such
Lender's Eurodollar Lending Office had funded 100% of its Eurodollar
Rate Advance in the Designated Eurodollar Market), then, within five
(5) Banking Days after demand by such Lender (with a copy to the
Administrative Agent), the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market); PROVIDED, that the
Borrowers shall not be obligated to pay any such amount which arose
prior to the date which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which is ninety
(90) days preceding the date of such demand. A statement of any Lender
claiming compensation under this subsection shall be conclusive in the
absence of manifest error.
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(c) If, after the date hereof, the existence or
occurrence of any Special Eurodollar Circumstance shall, in the good
faith opinion of any Lender, make it unlawful or impossible for such
Lender or its Eurodollar Lending Office to make, maintain or fund its
portion of any Eurodollar Rate Loan, or materially restrict the
authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the Designated Eurodollar Market, or to determine or charge
interest rates based upon the Eurodollar Rate, and such Lender shall so
notify the Administrative Agent, then such Lender's obligation to make
Eurodollar Rate Advances shall be suspended for the duration of such
illegality or impossibility and the Administrative Agent forthwith
shall give notice thereof to the other Lenders and the Borrowers. Upon
receipt of such notice, the outstanding principal amount of such
Lender's Eurodollar Rate Advances, together with accrued interest
thereon, automatically shall be converted to Alternate Base Rate
Advances (or shall be repaid in full, if such Eurodollar Rate Advances
are denominated in an Approved Offshore Currency) on either (1) the
last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Lender may lawfully continue to maintain and fund such
Eurodollar Rate Advances to such day(s) or (2) immediately if such
Lender may not lawfully continue to fund and maintain such Eurodollar
Rate Advances to such day(s), PROVIDED that in such event the
conversion or payment shall not be subject to payment of a prepayment
fee under Section 3.6(e). Each Lender agrees to endeavor promptly to
notify the Borrowers of any event of which it has actual knowledge,
occurring after the Closing Date, which will cause that Lender to
notify the Administrative Agent under this Section, and agrees to
designate a different Eurodollar Lending Office if such designation
will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons
set forth above, to make, maintain or fund its portion of any
Eurodollar Rate Loan, such Lender shall fund such amount as an
Alternate Base Rate Advance for the same period of time, and such
amount shall be treated in all respects as an Alternate Base Rate
Advance. Any Lender whose obligation to make Eurodollar Rate Advances
has been suspended under this Section shall promptly notify the
Administrative Agent and the Borrowers of the cessation of the Special
Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar
Rate Loan:
(1) the Administrative Agent reasonably
determines that, by reason of circumstances affecting the
Designated Eurodollar Market generally that are beyond the
reasonable control of the Lenders,
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deposits in Dollars (in the applicable amounts) are not being
offered to any Lender in the Designated Eurodollar Market for
the applicable Eurodollar Period; or
(2) the Requisite Lenders advise the
Administrative Agent that the Eurodollar Rate as determined by
the Administrative Agent (i) does not represent the effective
pricing to such Lenders for deposits in Dollars in the
Designated Eurodollar Market in the relevant amount for the
applicable Eurodollar Period, or (ii) will not adequately and
fairly reflect the cost to such Lenders of making the
applicable Euro dollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
the Borrowers and the Lenders, whereupon until the Administrative Agent
notifies the Borrowers that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to make any
future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar
Rate Advance (OTHER THAN as the result of a conversion required under
Section 3.6(c)) on a day other than the last day in the applicable
Eurodollar Period (whether voluntarily, involuntarily, by reason of
acceleration, or otherwise), or upon the failure of the Borrowers (for
a reason other than the breach by a Lender of its obligation pursuant
to Section 2.1(a) to make an Advance) to borrow on the date or in the
amount specified for a Eurodollar Rate Loan in any Request for Loan,
the Borrowers shall pay to the appropriate Lender within five (5)
Banking Days after demand a prepayment fee or failure to borrow fee, as
the case may be (determined as though 100% of the Eurodollar Rate
Advance had been funded in the Designated Eurodollar Market) equal to
the SUM of:
(1) $250; PLUS
(2) the amount, if any, by which (i)
the additional interest would have accrued on the amount
prepaid or not borrowed at the Eurodollar Rate if that amount
had remained or been outstanding through the last day of the
applicable Eurodollar Period EXCEEDS (ii) the interest that
the Lender could recover by placing such amount on deposit in
the Designated Eurodollar Market for a period beginning on the
date of the prepayment or failure to borrow and ending on the
last day of the applicable Eurodollar Period (or, if no
deposit rate quotation is available
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for such period, for the most comparable period for which a
deposit rate quotation may be obtained); PLUS
(3) all reasonable out-of-pocket
expenses incurred by the Lender reasonably attributable to
such payment, prepayment or failure to borrow.
Each Lender's determination of the amount of any prepayment fee payable
under this Section shall be conclusive in the absence of manifest
error.
(f) Each Lender agrees to endeavor promptly to
notify the Borrowers of any event of which it has actual knowledge,
occurring after the Closing Date, which will entitle such Lender to
compensation pursuant to clause (a) or clause (b) of this Section, and
agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for or reduce the amount of such
compensation and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender. Any request for
compensation by a Lender under this Section shall set forth the basis
upon which it has been determined that such an amount is due from the
Borrowers, a calculation of the amount due, and a certification that
the corresponding costs have been incurred by the Lender.
3.7 LATE PAYMENTS. If any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
SUM OF the Alternate Base Rate PLUS 2%, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (INCLUDING,
without limitation, interest on past due interest) shall be compounded monthly,
on the last day of each calendar month, to the fullest extent permitted by
applicable Laws.
3.8 COMPUTATION OF INTEREST AND FEES. Computation of interest
and fees under this Agreement shall be calculated on the basis of a year of 360
days and the actual number of days elapsed. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid. Any
Loan that is repaid on the same day on which it is made shall bear interest for
one day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would
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otherwise be in excess of such maximum permitted amount shall instead be treated
as a payment of principal.
3.9 NON-BANKING DAYS. If any payment to be made by the
Borrowers or any other Party under any Loan Document shall come due on a day
other than a Banking Day, payment shall instead be considered due on the next
succeeding Banking Day and the extension of time shall be reflected in computing
interest and fees, unless, with respect to a payment due in respect of a
Eurodollar Loan, such Banking Day falls in another calendar month, in which case
payment shall be made on the preceding Banking Day.
3.10 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments
pursuant to Sections 3.5, .3.6, 11.3, 11.11 and 11.22) or on the Notes
or under any other Loan Document shall be made to the Administrative
Agent at the Administrative Agent's Office (or at the Administrative
Agent's Approved Offshore Currency Payment Office, if payment is made
in respect of a Loan or Letter of Credit denominated in an Approved
Offshore Currency) for the account of each of the Lenders or the
Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. California time, on the day of payment
(which must be a Banking Day). All payments received after such time,
on any Banking Day, shall be deemed received on the next succeeding
Banking Day. The amount of all payments received by the Administrative
Agent for the account of each Lender shall be immediately paid by the
Administrative Agent to the applicable Lender in immediately available
funds and, if such payment was received by the Administrative Agent by
11:00 a.m., California time, on a Banking Day and not so made available
to the account of a Lender on that Banking Day, the Administrative
Agent shall reimburse that Lender for the cost to such Lender of
funding the amount of such payment at the Federal Funds Rate. All
payments shall be made in the Applicable Currency borrowed.
(b) The Borrowers hereby authorize the
Administrative Agent to debit the general operating bank account of the
Parent to effect any payment due to the Lenders or the Administrative
Agent pursuant to this Agreement. Any resulting overdraft in such
account shall be payable by the Borrowers to the Administrative Agent
on the next following Banking Day.
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(c) Each payment or prepayment on account of any
Loan shall be applied pro rata according to the outstanding Advances
made by each Lender comprising such Loan.
(d) Each Lender shall use its best efforts to
keep a record (in writing or by an electronic data entry system) of
Advances made by it and payments received by it with respect to each of
its Notes and, subject to Section 10.6(G), such record shall, as
against the Borrowers, be presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, the failure by any Lender to
keep such a record shall not affect the Borrowers' obligation to pay
the Obligations.
(e) Each payment of any amount payable by the
Borrowers or any other Party under this Agreement or any other Loan
Document shall be made free and clear of, and without reduction by
reason of, any taxes, assessments or other charges imposed by any
Governmental Agency, central bank or comparable authority, EXCLUDING
(i) taxes imposed on or measured in whole or in part by its overall net
income by (A) any jurisdiction (or political subdivision thereof) in
which it is organized or maintains its principal office or Eurodollar
Lending Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business" and (ii) any withholding taxes
or other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to provide
the Borrowers with the appropriate form or forms required by Section
11.21, to the extent such forms are then required by applicable Laws
(all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that the Borrowers
are obligated by applicable Laws to make any deduction or withholding
on account of Taxes from any amount payable to any Lender under this
Agreement, the Borrowers shall (i) make such deduction or withholding
and pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Tax amount equal to the amount to which
that Lender would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results
in an excess payment or credit to that Lender on account of such Taxes,
that Lender shall promptly refund such excess to the Borrowers.
3.11 FUNDING SOURCES. Nothing in this Agreement shall be
deemed to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
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3.12 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by
the Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest arising under Section 3.7), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (INCLUDING interest arising under Section 3.7), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.13 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE
MADE. Unless the Administrative Agent shall have been notified by the Borrowers
prior to the date on which any payment to be made by the Borrowers hereunder is
due that the Borrowers do not intend to remit such payment, the Administrative
Agent may, in its discretion, assume that the Borrowers have remitted such
payment when so due and the Administrative Agent may, in its discretion and in
reliance upon such assumption, make available to each Lender on such payment
date an amount equal to such Lender's share of such assumed payment. If the
Borrowers have not in fact remitted such payment to the Administrative Agent,
each Lender shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent at the Federal Funds Rate.
3.14 FEE DETERMINATION DETAIL. The Administrative Agent, and
any Lender, shall provide reasonable detail to the Borrowers regarding the
manner in which the amount of any payment to the Administrative Agent and the
Lenders, or that Lender, under ARTICLE 3 has been determined, concurrently with
demand for such payment.
3.15 SURVIVABILITY. All of the Borrowers' obligations under
Sections 3.5 and 3.6 shall survive for the ninety (90) day period following the
date on which the Commitment is terminated and all Loans hereunder are fully
paid, and the Borrowers shall remain obligated thereunder for all claims under
such Sections made by any Lender to the Borrowers prior to the expiration of
such period.
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Article 4.
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Each Borrower is a corporation duly formed, validly existing and in good
standing under the Laws of its state or other jurisdiction of organization. Each
Borrower is duly qualified or registered to transact business and is in good
standing in its state or other jurisdiction of organization and in each other
jurisdiction in which the conduct of its business or the ownership or leasing of
its Properties makes such qualification or registration necessary, EXCEPT where
the failure so to qualify or register and to be in good standing would not
constitute a Material Adverse Effect. Each Borrower has all requisite power and
authority to conduct its business, to own and lease its Properties and to
execute and deliver each Loan Document to which it is a Party and to perform its
Obligations. As of the Closing Date, the chief executive offices of the Parent
are located in California. All outstanding shares of capital stock of each
Borrower are duly authorized, validly issued, fully paid and non-assessable, and
no holder thereof has any enforceable right of rescission under any applicable
state or federal securities Laws. Each Borrower is in compliance with all Laws
and other legal requirements applicable to its business, has obtained all
authorizations, consents, approvals, orders, licenses and permits from, and has
accomplished all filings, registrations and qualifications with, or obtained
exemptions from any of the foregoing from, any Governmental Agency that are
necessary for the transaction of its business, EXCEPT where the failure so to
comply, obtain authorizations, etc., file, register, qualify or obtain
exemptions does not constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND
INSTRUMENTS AND GOVERNMENT REGULATIONS. The execution, delivery and performance
by each Borrower and each Subsidiary Guarantor of the Loan Documents to which it
is a Party have been duly authorized by all necessary corporate action, and do
not and will not:
(a) Require any consent or approval not
heretofore obtained of any partner, director, stockholder, security
holder or creditor of such Party;
(b) Violate or conflict with any provision of
such Party's charter, articles of incorporation or bylaws, as
applicable;
(c) Result in or require the creation or
imposition of any Lien (OTHER THAN pursuant to the Loan Documents) or
Right of Others upon or with
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respect to any Property now owned or leased or hereafter acquired by
such Party;
(d) Violate any Requirement of Law applicable to
such Party;
(e) Result in a breach of or constitute a
default under, or cause or permit the acceleration of any obligation
owed under, any indenture or loan or credit agreement or any other
Contractual Obligation to which such Party is a party or by which such
Party or any of its Property is bound or affected;
and such Party is not in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any indenture, loan or credit agreement described
in Section 4.2(e), in any respect that constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. EXCEPT as previously
obtained or made, no authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any Governmental Agency is
or will be required to authorize or permit under applicable Laws the execution,
delivery and performance by any Borrower or any Subsidiary Guarantor of the Loan
Documents to which it is a Party.
4.4 SUBSIDIARIES.
(a) SCHEDULE 4.4 hereto correctly sets forth the
names, form of legal entity, number of shares of capital stock issued
and outstanding, number of shares owned by each Borrower and each
Material Subsidiary of each Borrower (specifying such owner) and
jurisdictions of organization of all Material Subsidiaries of the
Borrowers. Except as described in SCHEDULE 4.4, the Borrowers do not
own any capital stock, equity interest or debt security which is
convertible, or exchangeable, for capital stock or equity interest in
any Person. Unless otherwise indicated in SCHEDULE 4.4, all of the
outstanding shares of capital stock, or all of the units of equity
interest, as the case may be, of each Material Subsidiary are owned of
record and beneficially by the applicable Borrower, there are no
outstanding options, warrants or other rights to purchase capital stock
of any such Material Subsidiary, and all such shares or equity
interests so owned are duly authorized, validly issued, fully paid and
non-assessable, and were issued in compliance with all applicable state
and federal securities and other Laws, and are free and clear of all
Liens, EXCEPT for Permitted Encumbrances.
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(b) Each Material Subsidiary is a legal entity
of the type described in SCHEDULE 4.4 duly formed, validly existing and
in good standing under the Laws of its jurisdiction of organization, is
duly qualified to do business as a foreign organization and is in good
standing as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes such
qualification necessary (EXCEPT where the failure to be so duly
qualified and in good standing does not constitute a Material Adverse
Effect), and has all requisite power and authority to conduct its
business and to own and lease its Properties.
(c) Each Material Subsidiary is in compliance
with all Laws and other requirements applicable to its business and has
obtained all authorizations, consents, approvals, orders, licenses, and
permits from, and each such Material Subsidiary has accomplished all
filings, registrations, and qualifications with, or obtained exemptions
from any of the foregoing from, any Governmental Agency that are
necessary for the transaction of its business, EXCEPT where the failure
to be in such compliance, obtain such authorizations, consents,
approvals, orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 FINANCIAL STATEMENTS. The Parent has furnished to the
Administrative Agent (a) the audited financial statements of the Parent for the
Fiscal Year ended December 31, 1999 and (b) the unaudited balance sheet and
statement of operations of the Parent for the three-month period ended April 2,
2000. The financial statements described in clause (a) fairly present the
financial condition, results of operations and cash flows, and the balance sheet
and statement of operations described in clause (b) fairly present the financial
condition and results of operations of the Parent and its Subsidiaries as of
such dates and for such periods in conformity with GAAP (other than footnote
disclosures) consistently applied, subject only to normal year-end accruals and
audit adjustments.
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE CHANGES. The
Parent and its Subsidiaries do not have any material liability or material
contingent liability required under GAAP to be reflected or disclosed, and not
reflected or disclosed, in the balance sheet described in Section 4.5(b), OTHER
THAN liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. Except as set forth on
SCHEDULE 4.6, as of the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since December 31, 1999.
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4.7 TITLE TO AND LOCATION OF PROPERTY. The Parent and its
Subsidiaries have valid title to the Property (OTHER THAN assets which are the
subject of a Capital Lease Obligation) reflected in the balance sheet described
in Section 4.5(b), OTHER THAN items of Property or exceptions to title which are
in each case immaterial, and Property subsequently sold or disposed of in
accordance with SECTION 6.2 or otherwise in the ordinary course of business.
Such Property is free and clear of all Liens and Rights of Others, OTHER THAN
Liens or Rights of Others described in SCHEDULE 4.7A and Permitted Encumbrances
and Permitted Rights of Others. As of the Closing Date, Property of Borrower and
its Subsidiaries is located at one of the locations described in SCHEDULE 4.7B.
4.8 INTANGIBLE ASSETS. The Borrowers and their Subsidiaries
own, or possess the right to use to the extent necessary in their respective
businesses, all material trademarks, trade names, copyrights, patents, patent
rights, computer software, licenses and other Intangible Assets that are used in
the conduct of their businesses as now operated, and no such Intangible Asset,
to the best knowledge of the Borrowers, conflicts with the valid trademark,
trade name, copyright, patent, patent right or Intangible Asset of any other
Person to the extent that such conflict constitutes a Material Adverse Effect.
EXCEPT as set forth in SCHEDULE 4.8, the Borrowers have not used any trade name,
trade style or "dba" during the five year period ending on the Closing Date.
4.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Parent nor
any of its Subsidiaries 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, as amended.
4.10 LITIGATION. EXCEPT for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against any Borrower or any Subsidiary of a
Borrower of less than $1,000,000, (c) matters of an administrative nature not
involving a claim or charge against a Borrower or any of its Subsidiary of a
Borrower and (d) matters set forth in SCHEDULE 4.10, there are no actions,
suits, proceedings or investigations pending as to which any Borrower or any
Subsidiary of a Borrower has been served or have received notice or, to the best
knowledge of the Borrowers, threatened against or affecting any Borrower or any
Subsidiary of a Borrower or any Property of any of them before any Governmental
Agency.
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4.11 BINDING OBLIGATIONS. Each of the Loan Documents to which
any Borrower or any Subsidiary Guarantor is a Party will, when executed and
delivered by such Party, constitute the legal, valid and binding obligation of
such Party, enforceable against such Party in accordance with its terms, EXCEPT
as enforcement may be limited by Debtor Relief Laws or equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
4.12 NO DEFAULT. No event has occurred and is continuing that
is a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all
material respects with ERISA and any other applicable Laws to
the extent that noncompliance could reasonably be expected to
have a Material Adverse Effect;
(ii) such Pension Plan has not incurred
any "accumulated funding deficiency" (as defined in Section
302 of ERISA) that could reasonably be expected to have a
Material Adverse Effect;
(iii) no "reportable event" (as defined
in Section 4043 of ERISA, but EXCLUDING such events as to
which the PBGC has by regulation waived the requirement
therein contained that it be notified within thirty days of
the occurrence of such event) has occurred that could
reasonably be expected to have a Material Adverse Effect; and
(iv) neither the Parent nor any of its
Subsidiaries has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code) that
could reasonably be expected to have a Material Adverse
Effect.
(b) Neither the Parent nor any of its
Subsidiaries has incurred or expects to incur any withdrawal liability
to any Multiemployer Plan that could reasonably be expected to have a
Material Adverse Effect.
4.14 REGULATION U; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulation U.
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Neither the Parent nor any of its Subsidiaries is or is required to be
registered as an "investment company" under the Investment Company Act of
1940.
4.15 DISCLOSURE. No written statement made by a Senior Officer
to the Administrative Agent or any Lender in connection with this Agreement, or
in connection with any Loan, as of the date thereof contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statement made not misleading in light of all the circumstances existing at the
date the statement was made unless such statements were corrected in writing and
delivered to the Lenders prior to the date of this Agreement.
4.16 TAX LIABILITY. The Parent and its Subsidiaries have filed
all tax returns which are required to be filed, and have paid, or made provision
for the payment of, all taxes with respect to the periods, Property or
transactions covered by said returns, or pursuant to any assessment received by
the Parent or any of its Subsidiaries, EXCEPT (a) such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained and (b) immaterial taxes
so long as no material Property of the Parent or any of its Subsidiaries is at
impending risk of being seized, levied upon or forfeited.
4.17 PROJECTIONS. As of the Closing Date, to the best
knowledge of Borrowers, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to the
Borrowers, and the Projections are reasonably based on such assumptions. Nothing
in this Section 4.17 shall be construed as a representation or covenant that the
Projections in fact will be achieved.
4.18 HAZARDOUS MATERIALS. Except as described in SCHEDULE
4.18, as of the Closing Date (a) neither the Parent nor any of its Subsidiaries
at any time has disposed of, discharged, released or threatened the release of
any Hazardous Materials on, from or under the Real Property in violation of any
Hazardous Materials Law that would individually or in the aggregate constitute a
Material Adverse Effect, (b) to the best knowledge of the Borrowers, no
condition exists that violates any Hazardous Material Law affecting any Real
Property except for such violations that would not individually or in the
aggregate constitute a Material Adverse Effect, (c) no Real Property or any
portion thereof is or has been utilized by Borrower or any of its Subsidiaries
as a site for the manufacture of any Hazardous Materials and (d) to the extent
that any Hazardous Materials are used, generated or stored by the Parent or any
of its Subsidiaries on any Real Property, or transported to or from such Real
Property by the Parent or any of its Subsidiaries, such use, generation, storage
and transportation are in compliance with all Hazardous Materials Laws except
for such
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non-compliance that would not constitute a Material Adverse Effect or be
materially adverse to the interests of the Lenders.
4.19 SECURITY INTEREST. Upon the execution and delivery of the
Pledge Agreement, the Pledge Agreement will create a valid security interest in
the Pledged Collateral and upon delivery of the Pledged Collateral to the
Administrative Agent all action necessary to perfect the security interest so
created will have been taken and completed and such security interest will be of
first priority and free of adverse claims.
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Article 5.
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, the Borrowers
shall, and shall cause their respective Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof, EXCEPT that the
Borrowers and their respective Subsidiaries shall not be required to pay or
cause to be paid (a) any tax, assessment, charge or levy that is not yet past
due, or is being contested in good faith by appropri ate proceedings so long as
the relevant entity has established and maintains adequate reserves for the
payment of the same or (b) any immaterial tax so long as no material Property of
a Borrower or of any of its Subsidiaries is at impending risk of being seized,
levied upon or forfeited.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties EXCEPT (a) a merger permitted by
Section 6.3 or as otherwise permitted by this Agreement and (b) where the
failure to so qualify or remain qualified would not constitute a Material
Adverse Effect.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect
all of their respective Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste of their
respective Properties, EXCEPT that the failure to maintain, preserve and protect
a particular item of Property that is at the end of its useful life or that is
not of significant value, either intrinsically or to the operations of the
Borrowers, shall not constitute a violation of this covenant.
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5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty,
workers' compensation and other insurance (subject to customary deductibles and
retentions) with responsible insurance companies in such amounts and against
such risks as is customary and usual in the industry for companies of similar
size and composition.
5.5 COMPLIANCE WITH LAWS. Comply with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, EXCEPT that the
Borrowers and their respective Subsidiaries need not comply with a Requirement
of Law then being contested by any of them in good faith by appropriate
proceedings.
5.6 INSPECTION RIGHTS. Upon reasonable notice, at any time
during regular business hours and as often as reasonably requested (but not so
as to materially interfere with the business of any Borrower or of any of its
Subsidiaries) permit the Administrative Agent or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies and
abstracts from the records and books of account of, and to visit and inspect the
Properties of, the respective Borrowers and their respective Subsidiaries and to
discuss the affairs, finances and accounts of the respective Borrowers and their
respective Subsidiaries with any of their officers, key employees or
accountants.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate
records and books of account reflecting all financial transactions in conformity
with GAAP, consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over any
Borrower or any Subsidiary of a Borrower.
5.8 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with
all Contractual Obligations to which any one or more of them is a party, EXCEPT
for any such Contractual Obligations (a) the performance of which would cause a
Default or Event of Default or (b) then being contested by any of them in good
faith by appropriate proceedings or (c) if the failure to comply does not
constitute a Material Adverse Effect.
5.9 USE OF PROCEEDS. Use the proceeds of all Loans for working
capital, Capital Expenditures, Permitted Acquisitions and general corporate
purposes of the Borrowers.
5.10 HAZARDOUS MATERIALS LAWS. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects with
all applicable Hazardous Materials Laws and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written material) of (a) any
and all material
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enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened in writing by a Governmental Agency pursuant
to any applicable Hazardous Materials Laws, (b) any and all material claims made
or threat ened in writing by any Person against any Borrower relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Materials and (c) discovery by any Senior Officer of any Borrower of
any material occurrence or condition on any Real Property adjoining or in the
vicinity of such Real Property that could reasonably be expected to cause such
Real Property or any part thereof to be subject to any material restrictions on
the ownership, occupancy, transferability or use of such Real Property under any
applicable Hazardous Materials Laws.
5.11 FUTURE SUBSIDIARIES. Pledge, pursuant to the Pledge
Agreement, all of the capital stock of any Domestic Subsidiary and 65% of the
capital stock of any Foreign Subsidiary formed or acquired after the Closing
Date, and cause each such Domestic Subsidiary to execute and deliver an
appropriate joinder to the Subsidiary Guaranty.
5.12 INTENTIONALLY OMITTED.
5.13 INTENTIONALLY OMITTED.
5.14 SYNDICATION PROCESS. Cooperate in such respects as may be
reasonably requested by the Arranger in connection with the syndication of the
credit facilities under this Agreement, INCLUDING the provision of information
(in form and substance acceptable to the Arranger) for inclusion in written
materials furnished to prospective syndicate members and the participation by
Senior Officers in meetings with prospective syndicate members. Nothing in this
Section 5.14 shall obligate the Borrowers to amend any Loan Document
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Article 6.
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, the Borrowers
shall not, and shall not permit any of their respective Subsidiaries to, unless
the Administrative Agent (with the written approval of the Requisite Lenders or,
if required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 PAYMENT OF SUBORDINATED OBLIGATIONS. Pay any (a) principal
(INCLUDING sinking fund payments) or any other amount (OTHER THAN scheduled
interest payments) with respect to any Subordinated Obligation, or purchase or
redeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit
any monies, securities or other Property with any trustee or other Person to
provide assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation or (b) scheduled interest on any Subordinated
Obligation UNLESS the payment thereof is then permitted pursuant to the terms of
the indenture or other agreement governing such Subordinated Obligation.
6.2 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired, EXCEPT (a) a Disposition by a
Borrower to another Borrower or to a Wholly-Owned Subsidiary of a Borrower, or
by a Subsidiary of a Borrower to a Borrower or a Wholly-Owned Subsidiary of a
Borrower, (b) a Disposition for which the Net Cash Sales Proceeds, when added to
the aggregate Net Cash Sales Proceeds of all Dispositions made during the term
of this Agreement, do not exceed $5,000,000 and (c) Dispositions of Property in
connection with sale/leaseback transactions, PROVIDED that the aggregate Net
Cash Sales Proceeds of all such Property disposed of pursuant to this clause (C)
during the term of this Agreement shall not exceed $5,000,000.
6.3 MERGERS. Merge or consolidate with or into any Person,
EXCEPT (a) mergers and consolidations of a Subsidiary of a Borrower into such
Borrower or a Wholly-Owned Subsidiary or of Subsidiaries with each other and (b)
a merger or consolidation of a Person into a Borrower or with or into a
Wholly-Owned Subsidiary of a Borrower which constitutes a Permitted Acquisition;
PROVIDED that (i) such Borrower or Wholly-Owned Subsidiary is the surviving
entity, (ii) no Change in Control results therefrom, (iii) no Default or Event
of Default then exists or would result therefrom, and (iv) the Borrowers and
each of the Subsidiary Guarantors execute
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such amendments to the Loan Documents as the Administrative Agent may reasonably
determine are appropriate as a result of such merger.
6.4 HOSTILE ACQUISITIONS. Directly or indirectly use the
proceeds of any Loan in connection with the acquisition of part or all of a
voting interest of five percent (5%) or more in any corporation or other
business entity if such acquisition is opposed by the board of directors of such
corporation or business entity.
6.5 ACQUISITIONS. Make any Acquisition other than a Permitted
Acquisition.
6.6 DISTRIBUTIONS. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other Property, EXCEPT:
(a) Distributions by any Subsidiary of a
Borrower to such Borrower or any Wholly-Owned Subsidiary;
(b) stock dividends payable on Common Stock; and
(c) any Foreign Subsidiary may declare and pay
stock dividends in respect of its capital stock issued to its
directors, to the extent such issuance is required by Law.
6.7 ERISA. At any time, permit any Pension Plan to: (i) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.8 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of the Parent and its Subsidiaries, taken as a whole.
6.9 LIENS AND NEGATIVE PLEDGES. Create, incur, assume or
suffer to exist any Lien or Negative Pledge of any nature upon or with respect
to any of their respective Properties, or, except as permitted by Section 6.2,
engage in any sale and leaseback transaction with respect to any of their
respective Properties, whether now owned or hereafter acquired, EXCEPT:
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(a) Liens and Negative Pledges existing on the
Closing Date and disclosed in SCHEDULE 4.7 and any renewals/extensions
or amendments thereof, PROVIDED that the obligations secured or
benefitted thereby are not increased;
(b) Liens and Negative Pledges in favor of the
Administrative Agent pursuant to the Collateral Documents;
(c) Permitted Encumbrances;
(d) Liens on Property acquired by Borrower or
any of its Subsidiaries that were in existence at the time of the
acquisition of such Property and were not created in contemplation of
such acquisition;
(e) Liens securing Indebtedness, in an aggregate
outstanding principal amount at any time of not more than $8,000,000,
permitted by Section 6.10(d) on and limited to the capital assets
acquired, constructed or financed with the proceeds of such
Indebtedness or with the proceeds of any Indebtedness directly or
indirectly refinanced by such Indebtedness; and
(f) Non-consensual Liens securing Indebtedness
of not more than $500,000, PROVIDED that such Liens are discharged
within thirty (30) days after their incurrence by a Borrower.
6.10 INDEBTEDNESS AND GUARANTY OBLIGATIONS. Create, incur
or assume any Indebtedness or Guaranty Obligation EXCEPT:
(a) Indebtedness and Guaranty Obligations
existing on the Closing Date and disclosed in SCHEDULE 6.10, and
refinancings, renewals, extensions or amendments that do not increase
the amount thereof;
(b) Indebtedness and Guaranty Obligations under
the Loan Documents;
(c) Indebtedness and Guaranty Obligations owed
to a Borrower or any of its Subsidiaries;
(d) Indebtedness consisting of Capital Lease
Obligations, or otherwise incurred to finance the purchase or
construction of capital assets (which shall be deemed to exist if the
Indebtedness is incurred at or within 90 days before or after the
purchase or construction of the capital asset), or to
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refinance any such Indebtedness, PROVIDED that the aggregate principal
amount of such Indebtedness incurred in any Fiscal Year does not exceed
$8,000,000.
(e) Subordinated Obligations in such amount as
may be approved in writing by the Requisite Lenders;
(f) Indebtedness consisting of debt securities
for which the Net Cash Issuance Proceeds will be applied as a mandatory
prepayment pursuant to Section 3.1(f);
(g) Indebtedness consisting of Interest Rate
Protection Agreements; and
(h) Guaranty Obligations in support of the
obligations of a Wholly-Owned Subsidiary, PROVIDED that such
obligations are not prohibited by this Agreement.
6.11 TRANSACTIONS WITH AFFILIATES. Enter into any transaction
of any kind with any Affiliate of a Borrower OTHER THAN (a) salary, bonus,
employee stock option and other advances, compensation arrangements with
employees, directors or officers in the ordinary course of business in an
aggregate amount not exceeding $2,000,000 outstanding at any time, (b)
transactions that are fully disclosed to the board of directors (or executive
committee thereof) of such Borrower and expressly authorized by a resolution of
the board of directors (or executive committee) of such Borrower which is
approved by a majority of the directors (or executive committee) not having an
interest in the transaction, (c) transactions between or among such Borrower and
its Subsidiaries and (d) transactions on overall terms at least as favorable to
such Borrower or its Subsidiaries as would be the case in an arm's-length
transaction between unrelated parties of equal bargaining power. Without
limiting the generality of the preceding sentence, in no event shall any
Borrower pay, or permit any of its Subsidiaries to pay, management fees or fees
for services to any Affiliate of such Borrower without the prior written
approval of the Administrative Agent.
6.12 LEVERAGE RATIO. Permit the Leverage Ratio as of the last
day of any fiscal quarter to be greater than 3.00 to 1.00.
6.13 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio as of the last day of any fiscal quarter to be less than 2.00 to
1.00.
6.14 NET WORTH. Permit Net Worth as of the last day of any
fiscal quarter occurring during the term of this Agreement to be less than the
SUM OF:
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(a) $210,000,000; (b) 85% of the cumulative Net Income for each fiscal quarter
ending after December 31, 1999 (with no deduction for a net loss in any such
fiscal quarter); and (c) 100% of the proceeds of any issuance by a Borrower of
equity securities (EXCEPT to employees or former employees of a Borrower
pursuant to an employee stock option plan maintained by a Borrower) subsequent
to the Closing Date.
6.15 INVESTMENTS. Make or suffer to exist any Investment,
OTHER THAN:
(a) Investments in existence on the Closing Date
and disclosed on SCHEDULE 6.15;
(b) Investments consisting of Cash Equivalents;
(c) Investments in a Person that is the subject
of a Permitted Acquisition;
(d) Investments consisting of advances to
officers, directors and employees of a Borrower or of any Subsidiary
for travel, entertainment, relocation, anticipated bonus and analogous
ordinary business purposes, not to exceed an aggregate outstanding
amount at any time of $2,000,000;
(e) Investments in a Domestic Subsidiary that is
a Wholly-Owned Subsidiary;
(f) Investments in a Foreign Subsidiary that is
a Wholly-Owned Subsidiary and Investments in Joint Ventures; PROVIDED
that the aggregate of all such Investments in all Foreign Subsidiaries
and Joint Ventures does not exceed (i) for Fiscal Year 2000, 65% of Net
Worth, (ii) for Fiscal Year 2001, 60% of Net Worth and (iii) for Fiscal
Year 2002 and thereafter, 55% of Net Worth;
(g) Investments consisting of the extension of
credit to customers or suppliers of a Borrower or of any Subsidiary in
the ordinary course of business and any Investments received in
satisfaction or partial satisfaction thereof;
(h) Investments received in connection with the
settlement of a bona fide dispute with another Person;
(i) Investments representing all or a portion of
the sales price of Property sold or services provided to another
Person;
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(j) Investments by Foreign Subsidiaries other
than any Borrower in any other Subsidiary of a Borrower (whether a
Domestic Subsidiary or a Foreign Subsidiary);
(k) Investments consisting of accounts
receivable that arise in the ordinary course of business and are
payable on standard terms;
(l) Investments in di/dt, Inc. of up to
$4,000,000 in the aggregate during the term of this Agreement; and
(m) Investments not described above not in
excess of $10,000,000 in any Fiscal Year.
6.16 CAPITAL EXPENDITURES. Make any Capital Expenditure in any
Fiscal Year, if to do so would cause the aggregate of all Capital Expenditures
made in such Fiscal Year to exceed (i) $40,000,000 for the Fiscal Year 2000,
(ii) $45,000,000 for the Fiscal Year 2001, or (iii) $50,000,000 for the Fiscal
Year 2002.
6.17 INTENTIONALLY OMITTED.
6.18 SUBSIDIARY INDEBTEDNESS. Permit (whether or not otherwise
permitted under Section 6.10) any Subsidiary of a Borrower to create, incur,
assume or suffer to exist any Indebtedness or Guaranty Obligation, EXCEPT (a)
Indebtedness and Guaranty Obligations in existence on the Closing Date, (b) a
Guaranty Obligation required by Section 5.11, (c) Indebtedness owed to a
Borrower or another Subsidiary of a Borrower, and (d) Capital Lease Obligations
and purchase money obligations of a Subsidiary in respect of Property used by
that Subsidiary.
6.19 AMENDMENTS TO SUBORDINATED OBLIGATIONS. Amend or modify
any term or provision of any indenture, agreement or instrument evidencing or
governing any Subordinated Obligation in any respect that will or may adversely
affect the interests of the Lenders.
6.20 CHANGES IN OFFICERS, NAME, LOCATION OF CHIEF EXECUTIVE
OFFICES, ETC. Make any change in the senior management of any of the Borrowers,
the corporate name of any of the Borrowers, or the location of any of the
Borrowers' assets, principal place of business or chief executive office without
providing written notice to the Administrative Agent within thirty (30) days
following such change.
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Article 7.
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any
Advance remains unpaid, or any other Obligation remains unpaid, or any
portion of the Commitment remains in force, the Borrowers shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents, at the Borrowers' sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders, a sufficient
number of copies for all of the Lenders of the following:
(a) As soon as practicable, and in any event
within 45 days after the end of each fiscal quarter (OTHER THAN the
fourth fiscal quarter in any Fiscal Year), the consolidated and
consolidating balance sheet of the Parent and its Subsidiaries as at
the end of such fiscal quarter and the consolidated and consolidating
statements of income and cash flows for such fiscal quarter, and the
portion of the Fiscal Year ended with such fiscal quarter, all in
reasonable detail. Such financial statements shall be certified by the
chief financial officer of the Parent as fairly presenting the
financial condition, results of operations and cash flows of the Parent
and its Subsidiaries in accordance with GAAP (other than footnote
disclosures), consistently applied, as at such date and for such
periods, subject only to normal year-end accruals and audit
adjustments;
(b) As soon as practicable, and in any event
within 45 days after the end of each fiscal quarter, a Pricing
Certificate setting forth a calculation of the Leverage Ratio as of the
last day of such fiscal quarter, and providing reasonable detail as to
the calculation thereof, which calculations in the case of the fourth
fiscal quarter in any Fiscal Year shall be based on the preliminary
unaudited financial statements of the Parent and its Subsidiaries for
such fiscal quarter, and as soon as practicable thereafter, in the
event of any material variance in the actual calculation of the
Leverage Ratio from such preliminary calculation, a revised Pricing
Certificate setting forth the actual calculation thereof;
(c) As soon as practicable, and in any event
within 90 days after the end of each Fiscal Year, the consolidated and
consolidating balance sheet of the Parent and its Subsidiaries as at
the end of such Fiscal Year and the consolidated and consolidating
statements of earnings, changes in stockholders' equity and cash flows,
in each case of the Parent and its Subsidiaries for such Fiscal Year,
all in reasonable detail. Such financial statements shall be prepared
in accordance with GAAP, consistently applied, and such consolidated
financial
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statements shall be accompanied by a report of KPMG or such other
independent public accountants of recognized standing selected by the
Parent and reasonably satisfactory to the Administrative Agent, which
report shall be prepared in accordance with generally accepted auditing
standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders in
their good faith business judgment to be adverse to the interests of
the Lenders. Such accountants' report shall be accompanied by a
certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification
of such financial statements and such report, such accountants have
obtained no knowledge of any Default then existing or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants
have reviewed the Borrowers' financial calculations as at the end of
such Fiscal Year (which shall accompany such certificate) under
Sections 6.12, 6.13, 6.14, 6.16, and 6.19, have read such Sections
(including the definitions of all defined terms used therein) and that
nothing has come to the attention of such accountants in the course of
such examination that would cause them to believe that the same were
not calculated by the Borrowers in the manner prescribed by this
Agreement;
(d) As soon as practicable, and in any event not
later than sixty (60) days after the commencement of each Fiscal Year,
a copy of the annual consolidated operating budget with respect to
Parent and its Subsidiaries for such Fiscal Year and each subsequent
Fiscal Year during the term of this Agreement;
(e) Promptly after reasonable request by the
Administrative Agent or any Lender, copies of any detailed audit
reports by independent accountants in connection with the accounts or
books of the Parent or any of its Subsidiaries, or any audit of any of
them;
(f) Promptly after the same are available, and
in any event within five (5) Banking Days after filing with the
Securities and Exchange Commission, copies of each annual report, proxy
or financial statement or other report or communication sent to the
stockholders of the Parent and copies of all annual, regular, periodic
and special reports and registration statements which the Parent may
file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, and not otherwise required to be delivered to the Lenders
pursuant to other provisions of this Section 7.1;
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(g) Promptly after reasonable request by the
Administrative Agent or any Lender, copies of any other report or other
document that was filed by the Parent or any other Borrower with any
Governmental Agency;
(h) Promptly upon a Senior Officer becoming
aware, and in any event within five (5) Banking Days after becoming
aware, of the occurrence of any (i) "reportable event" (as such term is
defined in Section 4043 of ERISA, but EXCLUDING such events as to which
the PBGC has by regulation waived the requirement therein contained
that it be notified within thirty days of the occurrence of such event)
or (ii) non-exempt "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Pension
Plan or any trust created thereunder, telephonic notice specifying the
nature thereof, and, no more than two (2) Banking Days after such
telephonic notice, written notice again specifying the nature thereof
and specifying what action the applicable Borrower is taking or
proposes to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect thereto;
(i) As soon as practicable, and in any event
within two (2) Banking Days after a Senior Officer becomes aware of the
existence of any condition or event which constitutes a Default or
Event of Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than two (2) Banking Days after such
telephonic notice, written notice again specifying the nature and
period of existence thereof and specifying what action the Borrowers
are taking or propose to take with respect thereto;
(j) Promptly upon a Senior Officer becoming
aware that (i) any Person has commenced a legal proceeding with respect
to a claim against any Borrower that is $1,000,000 or more in excess of
the amount thereof that is fully covered by insurance, (ii) any
creditor under a credit agreement involving Indebtedness of $1,000,000
or more or any lessor under a lease involving aggregate rent of
$1,000,000 or more has asserted a default thereunder on the part of any
Borrower or (iii) any Person has commenced a legal proceeding with
respect to a claim against any Borrower under a contract that is not a
credit agreement or material lease with respect to a claim of in excess
of $1,000,000 or which otherwise may reasonably be expected to result
in a Material Adverse Effect, a written notice describing the pertinent
facts relating thereto and what action the applicable Borrower is
taking or proposes to take with respect thereto; and
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(k) Such other data and information as from time
to time may be reasonably requested by the Administrative Agent, any
Lender (through the Administrative Agent) or the Requisite Lenders.
7.2 COMPLIANCE CERTIFICATES. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion
of the Commitment remains outstanding, the Borrowers shall, at the Borrowers'
sole expense, deliver to the Administrative Agent for distribution by it to
the Lenders concurrently with the financial statements required pursuant to
Sections 7.1(a) and 7.1(c), a Compliance Certificate signed by a Senior
Officer.
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Article 8.
CONDITIONS
8.1 INITIAL ADVANCES. The obligation of each Lender to make
the initial Advance to be made by it, and the obligation of the Issuing
Lender to issue the initial Letter of Credit, is subject to the following
conditions precedent, each of which shall be satisfied prior to the making of
the initial Advances (unless all of the Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) The Administrative Agent shall have received
all of the fol lowing, each of which shall be originals unless
otherwise specified, each properly executed by a Responsible Official
of each party thereto, each dated as of the Closing Date and each in
form and substance satisfactory to the Administrative Agent and its
legal counsel (unless otherwise specified or, in the case of the date
of any of the following, unless the Administrative Agent otherwise
agrees or directs):
(1) at least one (1) executed
counterpart of this Agreement, together with arrangements
satisfactory to the Administrative Agent for additional
executed counterparts, sufficient in number for distribution
to the Lenders and the Borrowers;
(2) a Note executed by each of the
Borrowers in favor of each Lender, in a principal amount equal
to that Lender's Pro Rata Share of the Commitment;
(3) the Subsidiary Guaranty executed by
the Subsidiary Guarantors;
(4) the Pledge Agreement executed by
the Borrowers;
(5) the Collateral, together with
executed undated stock powers relating thereto;
(6) such financing statements on Form
UCC-1 executed by the Borrowers with respect to the Pledge
Agreement as the Administrative Agent may reasonably request;
(7) with respect to the Borrowers and
the Subsidiary Guarantors, such documentation as the
Administrative Agent may
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reasonably require to establish the due organization, valid
existence and good standing of each of the Borrowers and each
of the Subsidiary Guarantors, each such Party's qualification
to engage in business in each material jurisdiction in which
it is engaged in business or required to be so qualified, its
authority to execute, deliver and perform the Loan Documents
to which it is a Party, the identity, authority and capacity
of each Responsible Official thereof authorized to act on its
behalf, INCLUDING certified copies of articles or certificates
of incorporation and amendments thereto, bylaws and amendments
thereto, certificates of good standing and/or qualification to
engage in business, tax clearance certificates, certificates
of corporate resolutions, incumbency certificates,
Certificates of Responsible Officials, and the like;
(8) the Opinion of Counsel;
(9) a Certificate of the chief
financial officer of the Parent, on behalf of the Borrowers,
certifying that the representation contained in Section 4.17
is, to the best of his or her knowledge, true and correct;
(10) a Certificate of the chief
financial officer of the Parent, on behalf of the Borrowers,
certifying that the conditions specified in Sections 8.1(e)
and 8.1(f) have been satisfied;
(11) a preliminary opening balance sheet
for the Parent and its Subsidiaries, in form and substance
acceptable to the Administrative Agent, reviewed by a firm of
independent certified public accountants acceptable to the
Administrative Agent;
(12) a copy of the executed letter of
intent, purchase agreement and such other agreements,
documents or instruments relating to the Powec Acquisition as
the Administrative Agent or its counsel may reasonably
request;
(13) a copy of the due diligence
materials, audit report, letter to management, and such other
written information relating to the Powec Acquisition provided
to the Borrowers by their certified public accountants as the
Administrative Agent or its counsel may reasonably request;
and
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(14) such other assurances,
certificates, documents, consents or opinions as the
Administrative Agent or the Requisite Lenders reasonably may
require.
(b) The fees payable on the Closing Date
pursuant to Section 3.2 shall have been paid.
(c) All Indebtedness outstanding under the
Existing Credit Agreement shall have been (or shall concurrently be)
paid and the same shall, together with all Liens securing such
Indebtedness, have been (or shall concurrently be) terminated.
(d) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 11.3, and invoiced to the
Borrowers prior to the Closing Date (if applicable), shall have been
paid.
(e) The representations and warranties of the
Borrowers contained in ARTICLE 4 shall be true and correct in all
material respects.
(f) The Borrowers and any other Parties shall be
in compliance with all the terms and provisions of the Loan Documents,
and giving effect to the initial Advance, no Default or Event of
Default shall have occurred and be continuing.
(g) All legal matters relating to the Loan
Documents shall be reasonably satisfactory to Sheppard, Mullin, Xxxxxxx
& Hampton LLP, special counsel to the Administrative Agent.
(h) The Closing Date shall have occurred on or
before May 10, 2000.
8.2 ANY ADVANCE. The obligation of each Lender to make any
Advance, and the obligation of the Issuing Lender to issue any Letter of
Credit, is subject to the following conditions precedent (unless the
Requisite Lenders or, in any case where the approval of all of the Lenders is
required pursuant to Section 11.2, all of the Lenders, in their sole and
absolute discretion, shall agree otherwise):
(a) EXCEPT (i) for representations and
warranties which expressly speak as of a particular date or are no
longer true and correct as a result of a change which is permitted by
this Agreement or (ii) as disclosed by
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the Borrowers and approved in writing by the Requisite Lenders, the
representations and warranties contained in ARTICLE 4 (OTHER THAN
Sections 4.4, 4.6 (first sentence), 4.10 and 4.17) shall be true and
correct in all material respects on and as of the date of the Advance
as though made on that date;
(b) no circumstance or event shall have occurred
that constitutes a Material Adverse Effect since the Closing Date;
(c) other than matters described in SCHEDULE
4.10 or not required as of the Closing Date to be therein described,
there shall not be then pending or threatened any action, suit,
proceeding or investigation against or affecting the Borrowers or any
of their respective Subsidiaries or any Property of any of them before
any Governmental Agency that constitutes a Material Adverse Effect; and
(d) the Administrative Agent shall have timely
received a Request for Loan (or telephonic or other request for Loan
referred to in the second sentence of Section 2.1(c), if applicable),
or a Request for Letter of Credit (as applicable), in compliance with
ARTICLE 2.
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Article 9.
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 EVENTS OF DEFAULT. The existence or occurrence of any
one or more of the following events, whatever the reason therefor and under
any circumstances whatsoever, shall constitute an Event of Default:
(a) The Borrowers fail to pay any principal on
any of the Notes, or any portion thereof, on the date when due; or
(b) The Borrowers fail to pay any interest on
any of the Notes, or any fees under Sections 3.3, 3.4 or 3.5, or any
portion thereof, within two (2) Banking Days after the date when due;
or fails to pay any other fee or amount payable to the Lenders under
any Loan Document, or any portion thereof, within five (5) Banking Days
after demand therefor; or
(c) The Borrowers fail to comply with any of the
covenants contained in ARTICLE 6 and, if such default is capable of
being cured by the payment of cash, such default is not cured with
three (3) Banking Days after discovery thereof by any Borrower; or
(d) The Borrowers fail to comply with Section
7.1(i) in any respect that is materially adverse to the interests of
the Lenders; or
(e) Any Borrower or any other Party fails to
perform or observe any other covenant or agreement (not specified in
clause (a), (b), (c) or (d) above) contained in any Loan Document on
its part to be performed or observed within twenty (20) Banking Days
after the giving of notice by the Administrative Agent on behalf of the
Requisite Lenders of such Default or, if such Default is not reasonably
susceptible of cure within such period, within such longer period as is
reasonably necessary to effect a cure so long as such Borrower or such
Party continues to diligently pursue cure of such Default but not in
any event in excess of forty (40) Banking Days; or
(f) Any representation or warranty of any
Borrower or any other Party made in any Loan Document, or in any
certificate or other writing delivered by any Borrower or such Party
pursuant to any Loan Document, proves to have been incorrect when made
or reaffirmed in any respect that is materially adverse to the
interests of the Lenders; or
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(g) Any Borrower (i) fails to pay the principal,
or any principal installment, of any present or future Indebtedness of
$500,000 or more, or any guaranty of present or future Indebtedness of
$500,000 or more, on its part to be paid, when due (or within any
stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii)
fails to perform or observe any other term, covenant or agreement on
its part to be performed or observed, or suffers any event of default
to occur, in connection with any present or future Indebtedness of
$500,000 or more, or of any guaranty of present or future Indebtedness
of $500,000 or more, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their
behalf) has the right to declare such Indebtedness due before the date
on which it otherwise would become due or the right to require such
Borrower to redeem or purchase, or offer to redeem or purchase, all or
any portion of such Indebtedness; or
(h) Any Loan Document, at any time after its
execution and delivery and for any reason OTHER THAN the agreement or
action (or omission to act) of the Administrative Agent or the Lenders
or satisfaction in full of all the Obligations, ceases to be in full
force and effect or is declared by a court of competent jurisdiction to
be null and void, invalid or unenforceable in any respect which is
materially adverse to the interests of the Lenders; or the Pledge
Agreement ceases (other than by action or inaction of the
Administrative Agent or any Lender) to create a valid and effective
Lien in any material portion of the Collateral; or any Party thereto
denies in writing that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind
the same; or
(i) A final judgment against any Borrower is
entered for the payment of money in excess of $1,000,000 (not covered
by insurance or for which an insurer has reserved its rights) and,
absent procurement of a stay of execution, such judgment remains
unsatisfied for thirty (30) calendar days after the date of entry of
judgment, or in any event later than five (5) days prior to the date of
any proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the Property of any Borrower and is not released,
vacated or fully bonded within thirty (30) calendar days after its
issue or levy; or
(j) Any Borrower or Material Subsidiary
institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or any material part of its
Property, or is unable or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit
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of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its Property;
or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application
or consent of that Person and the appointment continues undischarged or
unstayed for sixty (60) calendar days; or any proceeding under a Debtor
Relief Law relating to any such Person or to all or any part of its
Prop erty is instituted without the consent of that Person and
continues undismissed or unstayed for sixty (60) calendar days; or
(k) The occurrence of an Event of Default (as
such term is or may hereafter be specifically defined in any other Loan
Document) under any other Loan Document; or
(l) Any holder of a Subordinated Obligation of
more than $1,000,000 asserts in writing that such Subordinated
Obligation is not subordinated to the Obligations in accordance with
its terms and the applicable Borrower or Borrowers obligated with
respect to such Subordinated Obligation does not promptly deny in
writing such assertion and contest any attempt by such holder to take
action based on such assertion; or
(m) Any Pension Plan maintained by any Borrower
is finally determined by the PBGC to have a material "accumulated
funding deficiency" as that term is defined in Section 302 of ERISA in
excess of an amount equal to 5% of the consolidated total assets of
such Borrower as of the most-recently ended fiscal quarter; or
(n) A Change in Control occurs.
9.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any
other rights or remedies of the Administrative Agent or the Lenders provided
for elsewhere in this Agreement, or the other Loan Documents, or by
applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the
continuance, of any Event of Default OTHER THAN an Event of Default
described in Section 9.1(j):
(1) the Commitments to make Advances
and all other obligations of the Administrative Agent or the
Lenders and all rights of the Borrowers and any other Parties
under the Loan Documents shall be suspended without notice to
or demand upon the Borrowers, which are
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expressly waived by the Borrowers, EXCEPT that all of the
Lenders or the Requisite Lenders (as the case may be, in
accordance with Section 11.2) may waive an Event of Default
or, without waiving, determine, upon terms and conditions
satisfactory to the Lenders or Requisite Lenders, as the case
may be, to reinstate the Commitments and such other
obligations and rights and make further Advances, which waiver
or determination shall apply equally to, and shall be binding
upon, all the Lenders;
(2) the Issuing Lender may, with the
approval of the Administrative Agent on behalf of the
Requisite Lenders, demand immediate payment by the Borrowers
of an amount equal to the aggregate amount of all outstanding
Letters of Credit to be held by the Issuing Lender in an
interest-bearing cash collateral account as collateral
hereunder; and
(3) the Requisite Lenders may request
the Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitments and/or declare all
or any part of the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable,
without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived
by the Borrowers.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(j):
(1) the Commitments to make Advances
and all other obligations of the Administrative Agent or the
Lenders and all rights of the Borrowers and any other Parties
under the Loan Documents shall terminate without notice to or
demand upon the Borrowers, which are expressly waived by the
Borrowers, EXCEPT that all of the Lenders may waive the Event
of Default or, without waiving, determine, upon terms and
conditions satisfactory to all the Lenders, to reinstate the
Commitment and such other obligations and rights and make
further Advances, which determination shall apply equally to,
and shall be bind ing upon, all the Lenders;
(2) an amount equal to the aggregate
amount of all outstanding Letters of Credit shall be
immediately due and payable to the
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Issuing Lender without notice to or demand upon the Borrowers,
which are expressly waived by the Borrowers, to be held by the
Issuing Lender in an interest-bearing cash collateral account
as collateral hereunder; and
(3) the unpaid principal of all Notes,
all interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents shall be forthwith due and
payable, without protest, present ment, notice of dishonor,
demand or further notice of any kind, all of which are
expressly waived by the Borrowers.
(c) Upon the occurrence of any Event of Default,
the Lenders and the Administrative Agent, or any of them, without
notice to (EXCEPT as expressly provided for in any Loan Document) or
demand upon the Borrowers, which are expressly waived by the Borrowers
(EXCEPT as to notices expressly provided for in any Loan Document), may
proceed (but only with the consent of the Requisite Lenders) to
protect, exercise and enforce their rights and remedies under the Loan
Documents against the Borrowers and any other Party and such other
rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Lenders'
rights and remedies are to be exercised shall be determined by the
Requisite Lenders in their sole discretion, and all payments received
by the Administrative Agent and the Lenders, or any of them, shall be
applied first to the costs and expenses (including reasonable
attorneys' fees and disbursements and the reasonably allocated costs of
attorneys employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate Obligations
owed to each Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Regardless of how each Lender
may treat payments for the purpose of its own accounting, for the
purpose of computing the Borrowers' Obligations hereunder and under the
Notes, payments shall be applied FIRST, to the costs and expenses of
the Administrative Agent and the Lenders, as set forth above, SECOND,
to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and
without duplication, according to the accrued and unpaid interest due
under each of the Loan Documents), and THIRD, to the payment of all
other amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan Documents. No
applica tion of payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the
Loan Documents, or
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prevent the exercise, or continued exercise, of rights or remedies of
the Lenders hereunder or thereunder or at Law or in equity.
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Article 10.
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Subject to Section
10.8, each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof or are reasonably incidental, as
determined by the Administrative Agent, thereto. This appointment and
authorization is intended solely for the purpose of facilitating the
servicing of the Loans and does not constitute appointment of the
Administrative Agent as trustee for any Lender or as representative of any
Lender for any other purpose and, EXCEPT as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such
action and exercise such powers only in an administrative and ministerial
capacity.
10.2 ADMINISTRATIVE AGENT AND AFFILIATES. Union Bank of
California, N.A. (and each successor Administrative Agent) has the same
rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders" includes Union Bank of California, N.A. in its
individual capacity. Union Bank of California, N.A. (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of banking, trust or other business with
Borrower, any Subsidiary thereof, or any Affiliate of Borrower or any
Subsidiary thereof, as if it were not the Administrative Agent and without
any duty to account therefor to the Lenders. Union Bank of California, N.A.
(and each successor Administrative Agent) need not account to any other
Lender for any monies received by it for reimbursement of its costs and
expenses as Administrative Agent hereunder, or (subject to Section 11.10) for
any monies received by it in its capacity as a Lender hereunder. The
Administrative Agent shall not be deemed to hold a fiduciary relationship
with any Lender and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent.
10.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents all items of any collateral or interests therein
received or held by the Administrative Agent. Subject to the Administrative
Agent's and the Lenders' rights to reimbursement for their costs and expenses
hereunder (INCLUDING reasonable attorneys' fees and disbursements and other
professional services and the reasonably allocated costs of attorneys
employed by the Administrative Agent or a Lender) and subject to the
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application of payments in accordance with Section 9.2(d), each Lender shall
have an interest in the Lenders' interest in such collateral or interests
therein in the same proportions that the aggregate Obligations owed such
Lender under the Loan Documents bear to the aggregate Obligations owed under
the Loan Documents to all the Lenders, without priority or preference among
the Lenders.
10.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it
has, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of
the Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of the Borrowers and upon such
other information as it has deemed appropriate, made its own independent
credit analysis and decision to enter into this Agreement. Each Lender also
agrees that it shall, independently and without reliance upon the
Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender,
continue to make its own independent credit analyses and decisions in acting
or not acting under the Loan Documents.
10.5 ACTION BY ADMINISTRATIVE AGENT.
(a) Absent actual knowledge of the
Administrative Agent of the existence of a Default, the Administrative
Agent may assume that no Default has occurred and is continuing, unless
the Administrative Agent (or the Lender that is then the Administrative
Agent) has received notice from the Borrowers stating the nature of the
Default or has received notice from a Lender stating the nature of the
Default and that such Lender considers the Default to have occurred and
to be continuing.
(b) The Administrative Agent has only those
obligations under the Loan Documents as are expressly set forth
therein.
(c) EXCEPT for any obligation expressly set
forth in the Loan Documents and as long as the Administrative Agent may
assume that no Event of Default has occurred and is continuing, the
Administrative Agent may, but shall not be required to, exercise its
discretion to act or not act, EXCEPT that the Administrative Agent
shall be required to act or not act upon the instructions of the
Requisite Lenders (or of all the Lenders, to the extent required by
Section 11.2) and those instructions shall be binding upon the
Administrative Agent and all the Lenders, PROVIDED that the
Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the
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Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a
notice specified in clause (a), the Administrative Agent shall
immediately give notice thereof to the Lenders and shall act or not act
upon the instructions of the Requisite Lenders (or of all the Lenders,
to the extent required by Section 11.2), PROVIDED that the
Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and EXCEPT
that if the Requisite Lenders (or all the Lenders, if required under
Section 11.2) fail, for five (5) Banking Days after the receipt of
notice from the Administrative Agent, to instruct the Administrative
Agent, then the Administrative Agent, in its sole discretion, may act
or not act as it deems advisable for the protection of the interests of
the Lenders.
(e) The Administrative Agent shall have no
liability to any Lender for acting, or not acting, as instructed by the
Requisite Lenders (or all the Lenders, if required under Section 11.2),
notwithstanding any other provision hereof.
10.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or
in connection with the Loan Documents, EXCEPT for their own gross negligence
or willful misconduct. Without limitation on the foregoing, the
Administrative Agent and its directors, officers, agents, employees and
attorneys:
(a) May treat the payee of any Note as the
holder thereof until the Administrative Agent receives notice of the
assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by the payee, and may treat each Lender as
the owner of that Lender's interest in the Obligations for all purposes
of this Agreement until the Administrative Agent receives notice of the
assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Lender;
(b) May consult with legal counsel (INCLUDING
in-house legal counsel), accountants (INCLUDING in-house accountants)
and other professionals or experts selected by it, or with legal
counsel, accountants or other profes sionals or experts for the
Borrowers and/or their respective Subsidiaries or the
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Lenders, and shall not be liable for any action taken or not taken by
it in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts selected by it with
reasonable care;
(c) Shall not be responsible to any Lender for
any statement, warranty or representation made in any of the Loan
Documents or in any notice, certificate, report, request or other
statement (written or oral) given or made in connection with any of the
Loan Documents except for those expressly made by it;
(d) EXCEPT to the extent expressly set forth in
the Loan Documents, shall have no duty to ask or inquire as to the
performance or observance by the Borrowers or their respective
Subsidiaries of any of the terms, conditions or covenants of any of the
Loan Documents or to inspect any collateral or any Property, books or
records of any Borrower or of any Subsidiary of any Borrower;
(e) Will not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any collateral;
(f) Will not incur any liability by acting or
not acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing
reasonably believed by it to be genuine and signed or sent by the
proper party or parties; and
(g) Will not incur any liability for any
arithmetical error in computing any amount paid or payable by the
Borrowers or any Subsidiary or Affiliate of any of the Borrowers or
paid or payable to or received or receivable from any Lender under any
Loan Document, INCLUDING, without limitation, principal, interest,
commitment fees, Advances and other amounts; PROVIDED that, promptly
upon discovery of such an error in computation, the Administrative
Agent, the Lenders and (to the extent applicable) the Borrowers and/or
their Subsidiaries or Affiliates shall make such adjustments as are
neces sary to correct such error and to restore the parties to the
position that they would have occupied had the error not occurred.
10.7 INDEMNIFICATION. Each Lender shall, ratably in
accordance with its Pro Rata Share of the Commitments (if the Commitments are
then in effect) or in accordance with its proportion of the aggregate
Indebtedness then evidenced by the
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Notes (if the Commitments have then been terminated), indemnify and hold the
Administrative Agent and its directors, officers, agents, employees and
attorneys harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (INCLUDING reasonable
attorneys' fees and disbursements and allocated costs of attorneys employed
by the Administrative Agent) that may be imposed on, incurred by or asserted
against it or them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the failure of the
Borrowers to pay the Indebtedness represented by the Notes) or any action
taken or not taken by it as Administrative Agent thereunder, EXCEPT such as
result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for that Lender's Pro Rata Share of any out-of-pocket cost
or expense incurred by the Administrative Agent in connection with the
negotiation, preparation, execution, delivery, amendment, waiver, restruc
turing, reorganization (INCLUDING a bankruptcy reorganization), enforcement
or attempted enforcement of the Loan Documents, to the extent that the
Borrowers or any other Party is required by Section 11.3 to pay that cost or
expense but fails to do so upon demand. Nothing in this Section 10.7 shall
entitle the Administrative Agent or any indemnitee referred to above to
recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from the Borrowers or any Subsidiary of any of the
Borrowers. To the extent that the Administrative Agent or any indemnitee
referred to above is later reimbursed such amount by the Borrowers or any
Subsidiary of any of the Borrowers, it shall return the amounts paid to it by
the Lenders in respect of such amount.
10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may, and at the request of the Requisite Lenders shall, resign as
Administrative Agent upon reasonable notice to the Lenders and the Borrowers
effective upon acceptance of appointment by a successor Administrative Agent.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement, the Requisite Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders, which successor
Administrative Agent shall be approved by the Borrowers (and such approval
shall not be unreasonably withheld or delayed). If no successor
Administrative 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
Administrative Agent from among the Lenders. Upon the acceptance of its
appointment as successor Administrative Agent hereunder, such successor
Administrative Agent shall succeed to all the rights, powers and duties of
the retiring Administrative Agent and the term "Administrative Agent" shall
mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated.
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After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE 10, and Sections 11.3,
11.11 and 11.22, 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. Notwithstanding the foregoing, if (a) the Administrative Agent has
not been paid its agency fees under Section 3.4 or has not been reimbursed
for any expense reimbursable to it under Section 11.3, in either case for a
period of at least one (1) year and (b) no successor Administrative Agent has
accepted appointment as Administrative Agent by the date which is thirty (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 Requisite
Lenders appoint a successor Administrative Agent as provided for above.
10.9 NO OBLIGATIONS OF THE BORROWERS. Nothing contained in
this Article 10 shall be deemed to impose upon the Borrowers any obligation
in respect of the due and punctual performance by the Administrative Agent of
its obligations to the Lenders under any provision of this Agreement, and the
Borrowers shall have no liability to the Administrative Agent or any of the
Lenders in respect of any failure by the Administrative Agent or any Lender
to perform any of its obligations to the Administrative Agent or the Lenders
under this Agreement. Without limiting the generality of the foregoing, where
any provision of this Agreement relating to the payment of any amounts due
and owing under the Loan Documents provides that such payments shall be made
by the Borrowers to the Administrative Agent for the account of the Lenders,
the Borrowers' obligations to the Lenders in respect of such payments shall
be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement. In addition,
the Borrowers may rely on a written statement by the Administrative Agent to
the effect that it has obtained the written consent of the Requisite Lenders
or all of the Lenders, as applicable under Section 11.2, in connection with a
waiver, amendment, consent, approval or other action by the Lenders
hereunder, and shall have no obligation to verify or confirm the same.
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Article 11.
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers,
privileges and remedies of the Administrative Agent and the Lenders provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of ARTICLE 8 hereof are
inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent's or the
Lenders' rights to assert them in whole or in part in respect of any other Loan.
11.2 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by the Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the written
approval of the Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which the Borrowers are
a Party, signed by the Borrowers, and, in the case of any amendment,
modification or supplement to ARTICLE 10, signed by the Administrative Agent),
and then only in the specific instance and for the specific purpose given; and,
without the approval in writing of all the Lenders, no amendment, modification,
supplement, termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the
amount of principal, principal prepayments or the rate of interest
payable on, any Note, or the amount of the Commitments or the Pro Rata
Share of any Lender or the amount of any commitment fee payable to any
Lender, or any other fee or amount payable to any Lender under the Loan
Documents or to waive an Event of Default consisting of the failure of
the Borrowers to pay when due principal, interest or any fee;
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(b) To postpone any date fixed for any payment
of principal of, prepayment of principal of or any installment of
interest on, any Note or any installment of any fee, or to extend the
term of the Commitments;
(c) To amend the provisions of the definition of
"REQUISITE LENDERS", or "MATURITY DATE"; or
(d) To release any Subsidiary Guarantor from the
Subsidiary Guaranty or to release any Collateral from the Lien of the
Pledge Agreement, EXCEPT if such release of Collateral occurs in
connection with a Disposition permitted under Section 6.2, in which
case such release shall not require the consent of any of the Lenders;
or
(e) To amend or waive ARTICLE 8 or this Section
11.2; or
(f) To amend any provision of this Agreement
that expressly requires the consent or approval of all or a specified
portion of the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
11.3 COSTS, EXPENSES AND TAXES. The Borrowers shall pay within
five (5) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents. The Borrowers shall also pay on demand, accompanied by an invoice
therefor, the reasonable costs and expenses of (a) the Administrative Agent in
connection with any amendment of or relating to the Loan Documents, and (b) the
Administrative Agent and the Lenders in connection with any waiver, refinancing,
restructuring, reorganization (INCLUDING a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (INCLUDING reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of the Borrowers or of any
Subsidiary of any thereof. The Borrowers shall pay any and all documentary and
other taxes,
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EXCLUDING (i) taxes imposed on or measured in whole or in part by a Lender's
overall net income imposed on it by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its principal office
or Eurodollar Lending Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business" or (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America for any
period with respect to which it has failed to provide the Borrowers with the
appropriate form or forms required by Section 11.21, to the extent such forms
are then required by applicable Laws, and all costs, expenses, fees and charges
payable or determined to be payable in connection with the filing or recording
of this Agreement, any other Loan Document or any other instrument or writing to
be delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on
the terms set forth in 11.11 the Administrative Agent and the Lenders from and
against any and all loss, liability or legal or other expense with respect to or
resulting from any delay in paying or failure to pay any such tax, cost,
expense, fee or charge or that any of them may suffer or incur by reason of the
failure of any Party to perform any of its Obligations. Any amount payable to
the Administrative Agent or any Lender under this Section 11.3 shall bear
interest from the fifth Banking Day following the date of demand for payment at
the Default Rate.
11.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
any of the Borrowers or any Affiliate of any of the Borrowers. A default by any
Lender will not increase the Pro Rata Share of the Commitments attributable to
any other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in
default, but is not obligated to do so. The Administrative Agent agrees that it
will use its best efforts either to induce promptly the other Lenders to assume
the obligations of a Lender in default or to obtain promptly another Lender,
reasonably satisfactory to the Borrowers, to replace such a Lender in default.
11.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
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11.6 NOTICES. EXCEPT as otherwise expressly provided in the
Loan Documents, all notices, requests, demands, directions and other
communications provided for hereunder or under any other Loan Document must be
in writing and must be mailed, telegraphed, telecopied, dispatched by commercial
courier or delivered to the appropriate party at the address set forth on the
signature pages of this Agreement or other applicable Loan Document or, as to
any party to any Loan Document, at any other address as may be designated by it
in a written notice sent to all other parties to such Loan Document in
accordance with this Section. EXCEPT as otherwise expressly provided in any Loan
Document, if any notice, request, demand, direction or other communication
required or permitted by any Loan Document is given by mail it will be effective
on the earlier of receipt or the fourth Banking Day after deposit in the United
States mail with first class or airmail postage prepaid; if given by telegraph
or cable, when delivered to the telegraph company with charges prepaid; if given
by telecopier, when sent; if dispatched by commercial courier, on the scheduled
delivery date; or if given by personal delivery, when delivered.
11.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative
Agent otherwise specifies with respect to any Loan Document, (a) this Agreement
and any other Loan Document may be executed in any number of counterparts and
any party hereto or thereto may execute any counterpart, each of which when
executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may be,
when taken together will be deemed to be but one and the same instrument and (b)
execution of any such counterpart may be evidenced by a telecopier transmission
of the signature of such party. The execution of this Agreement or any other
Loan Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents
to which the Borrowers are a Party will be binding upon and inure to
the benefit of the Borrowers, the Administrative Agent, each of the
Lenders, and their respective successors and assigns, EXCEPT that the
Borrowers may not assign their rights hereunder or thereunder or any
interest herein or therein without the prior written consent of all the
Lenders. Each Lender represents that it is not acquiring its Note with
a view to the distribution thereof within the meaning of the Securities
Act of 1933, as amended (subject to any requirement that disposition of
such Note must be within the control of such Lender). Any Lender may at
any time pledge its Note or any other instrument evidencing its
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rights as a Lender under this Agreement to a Federal Reserve Bank, but
no such pledge shall release that Lender from its obligations hereunder
or grant to such Federal Reserve Bank the rights of a Lender hereunder
absent foreclosure of such pledge.
(b) From time to time following the Closing
Date, each Lender may assign to one or more Eligible Assignees all or
any portion of its Pro Rata Share of the Commitments; PROVIDED that (i)
such Eligible Assignee, if not then a Lender or an Affiliate of the
assigning Lender, shall be approved by the Administrative Agent and (if
no Event of Default then exists) the Borrowers (neither of which
approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by a Commitment Assignment and
Acceptance, a copy of which shall be furnished to the Administrative
Agent as hereinbelow provided, (iii) EXCEPT in the case of an
assignment to an Affiliate of the assigning Lender, to another Lender
or of the entire remaining Commitments of the assigning Lender, the
assignment shall not assign a Pro Rata Share of the Commitments that is
equivalent to less than $10,000,000 and (iv) the effective date of any
such assignment shall be as specified in the Commitment Assignment and
Acceptance, but not earlier than the date which is five (5) Banking
Days after the date the Administrative Agent has received the
Commitment Assignment and Acceptance. Upon the effective date of such
Commitment Assignment and Acceptance, the Eligible Assignee named
therein shall be a Lender for all purposes of this Agreement, with the
Pro Rata Share of the Commitments therein set forth and, to the extent
of such Pro Rata Share, the assigning Lender shall be released from its
further obligations under this Agreement. The Borrowers agree that they
shall execute and deliver (against delivery by the assigning Lender to
the Borrowers of its Note) to such assignee Lender, a Note evidencing
that assignee Lender's Pro Rata Share of the Commitment, and to the
assigning Lender, a Note evidencing the Pro Rata Share of the
Commitments retained by the assigning Lender.
(c) By executing and delivering a Commitment
Assignment and Acceptance, the Eligible Assignee thereunder
acknowledges and agrees that: (i) other than the representation and
warranty that it is the legal and beneficial owner of the Pro Rata
Share of the Commitment being assigned thereby free and clear of any
adverse claim, the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability,
genuineness or sufficiency of this Agreement or any other Loan
Document; (ii) the assigning Lender has made no representation or
warranty and assumes no responsibility
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with respect to the financial condition of the Borrowers or the
performance by the Borrowers of the Obligations; (iii) it has received
a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) it will, independently and without reliance upon
the Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, xxxxx nue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by this Agreement; and (vi)
it will perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed by it
as a Lender.
(d) The Administrative Agent shall maintain at
the Administrative Agent's Office a copy of each Commitment Assignment
and Acceptance delivered to it and a register (the "Register") of the
names and address of each of the Lenders and the Pro Rata Share of the
Commitment held by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be available during
normal business hours for inspection by the Borrowers or any Lender
upon reasonable prior notice to the Administrative Agent. After receipt
of a completed Commitment Assignment and Acceptance executed by any
Lender and an Eligible Assignee, receipt of an assignment fee of $3,500
from such Lender or Eligible Assignee and consent from the
Administrative Agent and, if applicable, the Borrower, the
Administrative Agent shall, promptly following the effective date
thereof, provide to the Borrowers and the Lenders a revised SCHEDULE
1.1 giving effect thereto. The Borrowers, the Administrative Agent and
the Lenders shall deem and treat the Persons listed as Lenders in the
Register as the holders and owners of the Pro Rata Share of the
Commitment listed therein for all purposes hereof, and no assignment or
transfer of any such Pro Rata Share of the Commitment shall be
effective, in each case unless and until a Commitment Assignment and
Acceptance effecting the assignment or transfer thereof shall have been
accepted by the Administrative Agent and recorded in the Register as
provided above. Prior to such recordation, all amounts owed with
respect to the applicable Pro Rata Share of the Commitment shall be
owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is listed in the
Register as a Lender shall be conclusive and binding on any subsequent
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holder, assignee or transferee of the corresponding Pro Rata Share of
the Commitment.
(e) Each Lender may from time to time grant
participations to one or more banks or other financial institutions in
a portion of its Pro Rata Share of the Commitment; PROVIDED, HOWEVER,
that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other financial institutions shall not be
Lenders hereunder for any purpose EXCEPT, if the participation
agreement so provides, for the purposes of Sections 3.6, 3.7, 11.11 and
11.22 but only to the extent that the cost of such benefits to the
Borrowers does not exceed the cost which the Borrowers would have
incurred in respect of such Lender absent the participation, (iv) the
Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connec tion
with such Lender's rights and obligations under this Agreement, (v) the
participation interest shall be expressed as a percentage of the
granting Lender's Pro Rata Share of the Commitment as it then exists
and shall not restrict an increase in the Commitment, or in the
granting Lender's Pro Rata Share of the Commitment, so long as the
amount of the participation interest is not affected thereby and (vi)
the consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan Documents
OTHER THAN those which (A) extend the Maturity Date or any other date
upon which any payment of money is due to the Lenders, (B) reduce the
rate of interest on the Notes, any fee or any other monetary amount
payable to the Lenders, (C) reduce the amount of any installment of
principal due under the Notes, (D) release any Subsidiary Guaranty, or
(E) release any Collateral from the Lien of the Pledge Agreement,
except if such release of Collateral occurs in connection with a
Disposition permitted under Section 6.2, in which case such release
shall not require the consent of any of the Lenders or of any holder of
a participation interest in the Commitments.
11.9 RIGHT OF SETOFF. If an Event of Default has occurred and
is continuing, the Administrative Agent or any Lender (but in each case only
with the consent of the Requisite Lenders) may exercise its rights under Article
9 of the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by any of the Borrowers and/or any Property of the Borrowers in its
possession against the Obligations.
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11.10 SHARING OF SETOFFS. Each Lender severally agrees that if
it, through the exercise of any right of setoff, banker's lien or counterclaim
against the Borrowers, or otherwise, receives payment of the Obligations held by
it that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same proportion that existed
prior to the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment; and (b) such other adjustments and purchases of
participations shall be made from time to time as shall be equitable to ensure
that all of the Lenders share any payment obtained in respect of the Obligations
ratably in accordance with each Lender's share of the Obligations immediately
prior to, and without taking into account, the payment; PROVIDED that, if all or
any portion of a disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by the Borrowers or any Person claiming
through or succeeding to the rights of the Borrowers, the purchase of a
participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section 11.10
shall from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased. The
Borrowers expressly consent to the foregoing arrangements and agree that any
Lender holding a participation in an Obligation so purchased pursuant to this
Section 11.10 may exercise any and all rights of setoff, banker's lien or
counterclaim with respect to the participation as fully as if the Lender were
the original owner of the Obligation purchased.
11.11 INDEMNITY BY THE BORROWERS. The Borrowers agree to
indemnify, save and hold harmless the Administrative Agent and each Lender and
their respective directors, officers, agents, attorneys and employees
(collectively the "INDEMNITEES") from and against: (a) any and all claims,
demands, actions or causes of action (EXCEPT a claim, demand, action, or cause
of action for any amount excluded from the definition of "Taxes" in Section
3.12(d)) if the claim, demand, action or cause of action arises out of or
relates to any act or omission (or alleged act or omission) of any of the
Borrowers, any Affiliate of any of the Borrowers, or any officer, director or
stockholder of any such Party relating to the Commitment, the use or
contemplated use
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of proceeds of any Loan, or the relationship of the Borrowers and the Lenders
under this Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (A) above; and (c) any and all liabilities,
losses, reasonable costs or expenses (INCLUDING reasonable attorneys' fees and
the reasonably allocated costs of attorneys employed by any Indemnitee and
disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; PROVIDED that no Indemnitee shall be
entitled to indemnification for any loss caused by its own gross negligence or
willful misconduct or for any loss asserted against it by another Indemnitee. If
any claim, demand, action or cause of action is asserted against any Indemnitee,
such Indemnitee shall promptly notify the Borrowers, but the failure to so
promptly notify the Borrowers shall not affect the Borrowers' obligations under
this Section unless such failure materially prejudices the Borrowers' right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by the
Borrowers in writing) contest the validity, applicability and amount of such
claim, demand, action or cause of action and shall permit the Borrowers to
participate in such contest. Any Indemnitee that proposes to settle or
compromise any claim or proceeding for which the Borrowers may be liable for
payment of indemnity hereunder shall give the Borrowers written notice of the
terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding and shall obtain the
Borrowers' prior consent (which shall not be unreasonably withheld or delayed).
In connection with any claim, demand, action or cause of action covered by this
Section 11.11 against more than one Indemnitee, all such Indemnitees shall be
represented by the same legal counsel (which may be a law firm engaged by the
Indemnitees or attorneys employed by an Indemnitee or a combination of the
foregoing) selected by the Indemnitees and reasonably acceptable to the
Borrowers; PROVIDED, that if such legal counsel determines in good faith that
representing all such Indemnitees would or could result in a conflict of
interest under Laws or ethical principles applicable to such legal counsel or
that a defense or counterclaim is available to an Indemnitee that is not
available to all such Indemnitees, then to the extent reasonably necessary to
avoid such a conflict of interest or to permit unqualified assertion of such a
defense or counterclaim, each affected Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably
acceptable to the Borrowers, with all such legal counsel using reasonable
efforts to avoid unnecessary duplication of effort by counsel for all
Indemnitees; and FURTHER PROVIDED that the Administrative Agent (as an
Indemnitee) shall at all times be entitled to representation by separate legal
counsel (which may be a law firm or attorneys employed by the Administrative
Agent or a combination of the foregoing). Any obligation or liability of the
Borrowers to any Indemnitee under this Section 11.11 shall survive the
expiration or termination
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of this Agreement and the repayment of all Loans and the payment and performance
of all other Obligations owed to the Lenders.
11.12 NONLIABILITY OF THE LENDERS. The Borrowers acknowledge
and agree that:
(a) Any inspections of any Property of any of
the Borrowers made by or through the Administrative Agent or the
Lenders are for purposes of administration of the Loan only and the
Borrowers are not entitled to rely upon the same (whether or not such
inspections are at the expense of the Borrowers);
(b) By accepting or approving anything required
to be observed, performed, fulfilled or given to the Administrative
Agent or the Lenders pursuant to the Loan Documents, neither the
Administrative Agent nor the Lenders shall be deemed to have warranted
or represented the sufficiency, legality, effectiveness or legal effect
of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Administrative
Agent or the Lenders;
(c) The relationship between the Borrowers and
the Administrative Agent and the Lenders is, and shall at all times
remain, solely that of borrowers and lenders; neither the
Administrative Agent nor the Lenders shall under any circumstance be
construed to be partners or joint venturers of the Borrowers or any of
their respective Affiliates; neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship
of confidence or trust or a fiduciary relationship with the Borrowers
or any of their respective Affiliates, or to owe any fiduciary duty to
the Borrowers or any of their respective Affiliates; neither the
Administrative Agent nor the Lenders undertake or assume any
responsibility or duty to the Borrowers or any of their respective
Affiliates to select, review, inspect, supervise, pass judgment upon or
inform the Borrowers or any of their respective Affiliates of any
matter in connection with their Property or the operations of the
Borrowers or any of their respective Affiliates; the Borrowers and
their Affiliates shall rely entirely upon their own judgment with
respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
the Administrative Agent or the Lenders in connection with such matters
is solely for the protection of the Administrative Agent and the
Lenders and neither the Borrowers nor any other Person is entitled to
rely thereon; and
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(d) The Administrative Agent and the Lenders
shall not be responsible or liable to any Person for any loss, damage,
liability or claim of any kind relating to injury or death to Persons
or damage to Property caused by the actions, inaction or negligence of
any of the Borrowers and/or any Affiliate of any of the Borrowers and
the Borrowers hereby indemnify and hold the Administrative Agent and
the Lenders harmless on the terms set forth in Section 11.11 from any
such loss, damage, liability or claim.
11.13 NO THIRD PARTIES BENEFITTED. This Agreement is made for
the purpose of defining and setting forth certain obligations, rights and duties
of the Borrowers, the Administrative Agent and the Lenders in connection with
the Loans, and is made for the sole benefit of the Borrowers, the Administrative
Agent and the Lenders, and the Administrative Agent's and the Lenders'
successors and permitted assigns. EXCEPT as provided in Sections 11.8 and 11.11,
no other Person shall have any rights of any nature hereunder or by reason
hereof.
11.14 CONFIDENTIALITY. Each Lender agrees to hold any
confidential information that it may receive from the Borrowers pursuant to this
Agreement in confidence, EXCEPT for disclosure: (a) to other Lenders or
Affiliates of a Lender; (b) to legal counsel and accountants for the Borrowers
or any Lender; (c) to other professional advisors to the Borrowers or any
Lender, provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section 11.14; (d) to
regulatory officials having jurisdiction over that Lender; (e) as required by
Law or legal process, provided that each Lender agrees to notify the Borrowers
of any such disclosures unless prohibited by applicable Laws, or in connection
with any legal proceeding to which that Lender and the Borrowers are adverse
parties; and (f) to another financial institution in connection with a
disposition or proposed disposition to that financial institution of all or part
of that Lender's interests hereunder or a participation interest in its Notes,
provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section 11.14. For
purposes of the foregoing, "confidential information" shall mean any information
respecting the Borrowers or its Subsidiaries reasonably considered by a Borrower
to be confidential, OTHER THAN (i) information previously filed with any
Governmental Agency and available to the public, (ii) information previously
published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) the information previously disclosed by the Borrowers to
any Person not associated with Borrowers which does not owe a professional duty
of confidentiality to the Borrowers or which has not executed an appropriate
confidentiality agreement with the Borrowers. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the
Administrative Agent or the Lenders to the Borrowers.
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11.15 FURTHER ASSURANCES. The Borrowers shall, at their
expense and without expense to the Lenders or the Administrative Agent, do,
execute and deliver such further acts and documents as the Requisite Lenders or
the Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Lenders or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
11.16 INTEGRATION. This Agreement, together with the other
Loan Documents and the letter agreement referred to in Sections 3.2, 3.4, and
3.5, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; PROVIDED that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.17 GOVERNING LAW; JURISDICTION AND VENUE. EXCEPT to the
extent otherwise provided therein, each Loan Document shall be governed by, and
construed and enforced in accordance with, the Laws of California applicable to
contracts made and performed in California. THE PARTIES AGREE THAT ALL ACTIONS
OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND
LITIGATED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA,
OR, AT THE SOLE OPTION OF THE ADMINISTRATIVE AGENT OR ANY LENDER, IN ANY OTHER
COURT IN WHICH THE ADMINISTRATIVE AGENT AND/OR ANY LENDER SHALL INITIATE LEGAL
OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE
MATTER IN CONTROVERSY. THE PARTIES EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY SUCH COURT, AND
THE PARTIES HEREBY WAIVE ANY OBJECTION THEY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY ANY SUCH COURT. FURTHERMORE, THE PARTIES
HEREBY WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT THEY MAY
HAVE TO ASSERT THAT ANY SUCH COURT IS AN INCONVENIENT FORUM
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OR OTHERWISE TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION 11.17.
11.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
11.19 HEADINGS. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
11.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
11.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to the Borrowers (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if applicable) two duly
completed copies, signed by a Responsible Official, of either Form W-8BEN
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by the Borrowers pursuant
to this Agreement) or Form W-8ECI ( relating to all payments to be made to such
Lender by the Borrowers pursuant to this Agreement) of the United States
Internal Revenue Service or such other evidence (INCLUDING, if reasonably
necessary, Form W-8 or W-9) satisfactory to the Borrowers and the Administrative
Agent that no withholding under the federal income tax laws is required with
respect to such Lender. Thereafter and from time to time, each such Lender shall
(a) promptly submit to the Borrowers (with a copy to the Administrative Agent),
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrowers and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Lender by
the Borrowers pursuant to this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Eurodollar
Lending Office, if any) to avoid any
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requirement of applicable Laws that the Borrowers make any deduction or
withholding for taxes from amounts payable to such Lender. In the event that the
Borrowers or the Administrative Agent become aware that a participation has been
granted pursuant to Section 11.8(e) to a financial institution that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America, any State thereof or the District of Columbia,
then, upon request made by the Borrowers or the Administrative Agent to the
Lender which granted such participation, such Lender shall cause such
participant financial institution to deliver the same documents and information
to the Borrowers and the Administrative Agent as would be required under this
Section if such financial institution were a Lender.
11.22 HAZARDOUS MATERIAL INDEMNITY. The Borrowers hereby agree
to indemnify, hold harmless and defend (by counsel reasonably satisfactory to
the Administrative Agent) the Administrative Agent and each of the Lenders and
their respective directors, officers, employees, agents, successors and assigns
from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action require ments, enforcement actions of any kind, and
all reasonable costs and expenses incurred in connection therewith (including
but not limited to reasonable attorneys' fees and the reasonably allocated costs
of attorneys employed by the Administrative Agent or any Lender, and expenses to
the extent that the defense of any such action has not been assumed by the
Borrowers), arising directly or indirectly out of (i) the presence on, in, under
or about any Real Property of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from any Real Property and
(ii) any activity carried on or undertaken on or off any Real Property by the
Borrowers or any of its predecessors in title, whether prior to or during the
term of this Agree ment, and whether by the Borrowers or any predecessor in
title or any employees, agents, contractors or subcontractors of the Borrowers
or any predecessor in title, or any third persons at any time occupying or
present on any Real Property, in connection with the handling, treatment,
removal, storage, decontamination, clean-up, transport or disposal of any
Hazardous Materials at any time located or present on, in, under or about any
Real Property. The foregoing indemnity shall further apply to any residual
contamination on, in, under or about any Real Property, or affecting any natural
resources, and to any contamination of any Property or natural resources arising
in connection with the generation, use, handling, storage, transport or disposal
of any such Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable Laws, but
the foregoing indemnity shall not apply to Hazardous Materials on any Real
Property, the presence of which is caused by the Administrative Agent or the
Lenders. The Borrowers hereby acknowledge and agree that, notwithstanding any
other provision of this Agreement or any of the other Loan Documents to the
contrary, the obligations of the Borrowers
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under this Section shall be unlimited corporate obligations of the Borrowers and
shall NOT be secured by any Lien on any Real Property. Any obligation or
liability of the Borrowers to any Indemnitee under this Section 11.22 shall
survive the expiration or termination of this Agreement and the repayment of all
Loans and the payment and performance of all other Obligations owed to the
Lenders.
11.23 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
11.24 PURPORTED ORAL AMENDMENTS. THE BORROWERS EXPRESSLY
ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE
AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2.
THE BORROWERS AGREE THAT THEY WILL NOT RELY ON ANY COURSE OF DEALING, COURSE
OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER THAT DOES NOT COMPLY WITH SECTION 11.2 TO
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EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
11.25 JOINT AND SEVERAL. Each of the Borrowers shall be
obligated for all of the Obligations on a joint and several basis,
notwithstanding which of the Borrowers may have directly received the proceeds
of any particular Loan or Advance or the benefit of a particular Letter of
Credit. Each of the Borrowers acknowledges and agrees that, for the purposes of
the Loan Documents, the Borrowers constitute a single integrated financial
enterprise and that each receives a benefit from the availability of credit
under this Agreement. Each of the Borrowers waives all defenses arising under
the Laws of suretyship, to the extent such Laws are applicable, in connection
with the Borrowers' joint and several obligations under this Agreement. Without
limiting the foregoing, each of the Borrowers agrees to the Joint Borrower
Provisions set forth in EXHIBIT L, attached to this Agreement and incorporated
herein by this reference.
11.26 CONVERSION OF CURRENCIES. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Banking Day immediately preceding the day on which final
judgment is given. The obligations of the Borrowers in respect of any sum due to
any Lender (the "Applicable Lender") shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than the currency in which such sum is
stated to be due hereunder (the "Agreement Currency"), be discharged only to the
extent that on the Banking Day following receipt by the Applicable Lender of any
sum adjudged to be so due in the Judgment Currency, the Applicable Lender may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Lender in the Agreement Currency, the Borrowers agree, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Lender against such loss. The obligations of the Borrowers contained in this
Section 11.26 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
THE BORROWERS:
POWER-ONE, INC.
By:_____________________________________
Xx X. Xxxxxxx
Senior Vice President-Finance
and Chief Financial Officer
INTERNATIONAL POWER DEVICES, INC.
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX HOLDING AG
By:_____________________________________
Name: __________________________________
Title: _________________________________
By:_____________________________________
Name: __________________________________
Title: _________________________________
HC POWER, INC.
By:_____________________________________
Name: __________________________________
Title: _________________________________
S-1
Address for the Borrowers:
c/o Power-One, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx X. Xxxxxxx
Senior Vice President - Finance
and Chief Financial Officer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
S-2
ADMINISTRATIVE AGENT:
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
By:_____________________________
Xxxx Xxxx
Vice President
Address:
Union Bank of California, N.A.
Commercial Banking Group
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
S-3
THE LENDERS:
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:_____________________________
Xxxx Xxxx
Vice President
Address:
Union Bank of California, N.A.
Commercial Banking Group
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
S-4
